[1]This case comes before us by way of an
application for leave to appeal against the decision of the Supreme Court of
Appeal.[1]
The applicant further seeks condonation for non-compliance with the rules of
this Court both in relation to prescribed time frames
and the manner in which documents
are to be lodged with this Court.

[2]The matter concerns the dismissal of the
applicant, a public sector employee, by Transnet Pension Fund, a business unit
of Transnet
Limited. The applicant referred the dispute relating to her
dismissal to the Commission for Conciliation, Mediation and Arbitration
(CCMA) as
provided for in section 191(1)(a)(ii) of the Labour Relations Act 66 of 1995
(LRA).[2]
Conciliation failed to resolve the matter but the applicant did not pursue the
matter further under the provisions of the LRA.
Instead, she approached the
Johannesburg High Court where she sought the review and correction, or setting
aside, of the decision
of the third respondent to dismiss her from the employ
of the first respondent.

Parties to the litigation

[3]The applicant is Ms Petronella Nellie Nelisiwe
Chirwa. She joined the staff of Transnet in May 1999 in the capacity of Human
Resources
Manager. In December 2000 she was promoted to the rank of Human
Resources Executive Manager and was transferred to the Transnet
Pension Fund Business
Unit.

[4]The first respondent is Transnet Limited
(Transnet), formed and incorporated under the provisions of the Legal
Succession to the
South African Transport Services Act 9 of 1989. It is a
wholly state-owned public company with a number of business divisions.

[5]The second respondent is the Transnet Pension
Fund (the Fund), which was established in terms of the Transnet Pension Fund
Act 62
of 1990. The Fund is a business unit of Transnet.

[6]The third respondent, Mr Patrick Ian Smith, is
employed as the Chief Executive Officer of the Transnet Pension Fund Business
Unit
and is also the Principal Officer of the Fund. He is cited as a party to
this matter because he took the decision to dismiss Ms
Chirwa.

Factual background

[7]A detailed factual background is necessary for
the proper perspective of this case. Ms Chirwa assumed her duties as the Human
Resources Executive Manager with Mr Smith as her supervisor in January 2001. During
October 2002 the relationship between the
two soured.

[8]On 23 and 24 October 2002 she was subject to a
disciplinary enquiry initiated by Mr Smith and chaired by Mr Barry Jammy, who
was
appointed by Transnet to investigate the allegation of misconduct lodged
against Ms Chirwa. The enquiry specifically concerned
allegations that Ms
Chirwa failed to exercise her managerial powers and to perform her managerial
duties with reasonable care and
skill, in that she did not comply with the
instruction to fill the vacancy of a management accountant in the Property
Asset Management
Department. On the recommendation of Mr Jammy, she was issued
with a written warning on 11 November 2002 subsequent to the completion
of the
disciplinary hearing.

[9]Ms Chirwa sought to appeal against the decision
to issue her with a written warning. In a letter dated 14 November 2002, Mr Smith
responded to her and explained that at the time there was no functional appellate
structure within Transnet, because the proposed
disciplinary code for the management
of Transnet had not been ratified by the Executive Committee of Transnet. Mr
Smith advised
Ms Chirwa to challenge the written notice under the provisions of
section 186(2)(b) of the LRA.[3] It would
appear that Ms Chirwa did not follow that advice but instead lodged a formal
written grievance against Mr Smith in which
she narrated the acrimonious nature
of their relationship.

[10]By letter dated 15 November 2002, Mr Smith, in his official capacity, invited Ms Chirwa to an enquiry on 22 November 2002 to respond
to allegations of inadequate performance, incompetence and poor employee
relations; the outcome of which would be a decision regarding
her future at the
Fund. The letter catalogues in detail instances of poor performance,
incompetence and poor employee relations
spanning a fairly lengthy period. The
letter also contains a record of meetings that were held to plan the
improvement of Ms
Chirwa’s performance.

[11]Ms Chirwa refused to participate in the 22 November 2002 enquiry on the grounds that she objected to Mr Smith being “the
complainant,
witness and presiding officer at the same time.” Mr Smith
proceeded with the enquiry and concluded that Ms Chirwa should be
dismissed.

[12]In the letter of her dismissal dated 22 November 2002, Ms Chirwa was advised that in the event of her disputing her dismissal she
was entitled to exercise her rights as provided for by the LRA. The letter was
signed by Mr Smith in his capacity as the Chief
Executive Officer of the Fund.

[13]Following her dismissal, she referred the
dispute to the CCMA by alleging an unfair dismissal.[4] The CCMA was unable to resolve
the dispute within 30 days. Accordingly, it issued a certificate to that
effect and recommended
arbitration in accordance with section 191 of the LRA. Instead
of proceeding to arbitration, Ms Chirwa approached the High Court
where she
sought an order to (a) set aside the disciplinary proceedings that resulted in
her dismissal and (b) reinstate her in
her former position.

[14]Her complaint in the High Court was that the
disciplinary proceedings were fundamentally flawed on two grounds. The first
was
that Mr Smith, her main accuser, who was also her supervisor, acted as a
complainant, witness and a presiding officer during the
disciplinary enquiry.
It is not disputed that some 11 days prior to the disciplinary enquiry, the
applicant had received a written
warning in disciplinary proceedings initiated
by Mr Smith, her accuser. Eight days before the disciplinary enquiry, which is
the subject matter of these proceedings, the applicant had lodged a formal
grievance against Mr Smith.

[15]The second ground was that she had not been
afforded the opportunity to obtain legal representation. She alleged that the
process
of dismissing an employee for poor work performance is by its very
nature complex. In support of this contention, Ms Chirwa relied
upon the
provisions of item 9 of the Code of Good Practice: Dismissal (the Code) contained
in Schedule 8 to the LRA, alleging that:

“It involves, firstly, the setting of the
requisite performance standard and, secondly, a determination of whether the
employee
concerned did meet the required performance standard. If the employee
concerned did not meet the required performance standard
consideration must be
given to whether or not—

(a) the employee was aware, or could reasonably be expected
to have been aware, of the required performance standard;

(b) the employee was given a fair opportunity to meet the
required performance standard; and

(c) dismissal was an appropriate sanction for not meeting the
required performance standard.”

“The aforegoing facts amply demonstrate
that the 3rd respondent failed to comply with the mandatory
provisions of items 8 and 9 of Schedule 8 to the Labour Relations Act, 1995
(Act
66 of 1995) (the LRA). That being so, the decision at issue is reviewable
in terms of sections 6(2)(b) and 6(2)(f)(i) of the PAJA.”[5]

[18]It is therefore clear that Ms Chirwa’s claim is
based on the provisions of section 188 of the LRA read with items 8 and 9 of
the
Code. Section 188 of the LRA provides:

“(1) A dismissal that is not automatically unfair, is unfair if
the employer fails to prove—

(a) that the reason for
dismissal is a fair reason—

(i) related
to the employee’s conduct or capacity; or

(ii) based
on the employer’s operational requirements; and

(b) that the dismissal
was effected in accordance with a fair procedure.

(2) Any person considering whether or not the reason for
dismissal is a fair reason or whether or not the dismissal
was effected in
accordance with a fair procedure must take into account any relevant code of
good practice issued in terms of this
Act.”

[19]The explanation offered by Ms Chirwa for
approaching the High Court instead of the Labour Court was that she had two
causes of action
available to her; one under the LRA and the other flowing from
the Bill of Rights read with the provisions of the Promotion of Administrative
Justice Act 3 of 2000 (PAJA). She further explained that in the light of these
options she had decided “for practical considerations”
to approach the High
Court in the exercise of her constitutional right of access to court.
Consistent with this attitude, in
this Court as in the court below, it was
contended on her behalf that the High Court had concurrent jurisdiction with
the Labour
Court in respect of her claim.

The questions presented

[20]The central question in this matter is whether Parliament
conferred the jurisdiction to determine the applicant’s case upon the
Labour Court and the other mechanisms established by the LRA, in such a manner that it
either expressly or by necessary implication
excluded the jurisdiction of the
High Court.

The decision of the High Court

[21]The High Court[6]
assumed that it had jurisdiction in the matter, but did not reach this
conclusion based on the alleged violation of the provisions
of PAJA as pleaded
by the applicant. Instead, the High Court decided the matter on the basis of common
law rules of natural justice,
and concluded that the rules of natural justice
had been breached. This is based on the decision of Administrator,
Transvaal, and Othersv Zenzile and Others,[7] in which it was held that
dismissal of a public sector employee was not simply the termination of a
contractual relationship but
the exercise of a public power which required the
employer to apply the rules of natural justice.

[22]The court therefore declared the applicant’s
dismissal a nullity and made an order of reinstatement on terms and conditions
no
less favourable than those that operated at the time of her dismissal on 22
November 2002. However, it directed that its order
should operate
retrospectively for a period of nine months from the date of its order on 25 February 2004.

[23]To the extent that the High Court did not
consider Ms Chirwa’s claim in the context of PAJA, it erred. The cause of
action of
what is claimed to be an administrative act now arises from PAJA, and
not from the common law as it would have in the past.[8]

[24]With the leave of the High Court, Transnet
appealed to the Supreme Court of Appeal where it raised the following two issues
for
consideration by that Court:

(a)Whether Ms Chirwa’s dismissal was a matter which fell within the
exclusive jurisdiction of the Labour Court in terms of section
157(1) of the
LRA.[9]

(b)Whether the dismissal constituted administrative action as defined
in PAJA.

The decision of the Supreme Court
of Appeal

[25]Mthiyane JA, with Jafta JA concurring, held that
the High Court had concurrent jurisdiction with the Labour Court in relation to
the applicant’s claim. He reasoned that if an employment dispute raises an
alleged violation of a constitutional right, a litigant
is not confined to the
remedy provided under the LRA and that the jurisdiction of the High Court is
therefore not ousted. In
support of this reasoning, he relied upon the
decision of this Court in Fredericks and Others v MEC for Education
and Training, Eastern Cape, and Others.[10] In that decision, this Court
held that the Labour Courts are not afforded general jurisdiction in employment
matters and that
the High Court’s jurisdiction is not ousted by the provisions
of section 157(1) simply because “a dispute is one that falls
within the
overall sphere of employment relations.”[11]

[26]Apart from Fredericks, Mthiyane JA relied
upon certain decisions of the Supreme Court of Appeal, notably Fedlife
Assurance Ltd v Wolfaardt[12] and United National Public
ServantsAssociation of South Africa v Digomo NO & others.[13]
In Fedlife, the majority of the Supreme Court of Appeal held that
Chapter 8 of the LRA was not exhaustive of the rights and remedies that accrue
to an employee upon the termination of employment.[14] Accordingly, the right of an
employee to enforce a common law contract was held not to have been abrogated
by the LRA.[15]Digomo is substantially to the same effect. There it was held that the
remedies that the LRA provides for conduct which constitutes unfair
labour practice
are not exhaustive of the remedies that may be available to employees in the
course of the employment relationship.[16]
The conduct of the employer might constitute both an unfair labour practice,
for which the LRA provides a specific remedy, and
may also give rise to other
rights of action.[17]

“. . . the Labour Court will never enjoy
exclusive constitutional jurisdiction even in matters where the cause of action
is confined
to an alleged violation of the right to fair labour practices
simply because that is a constitutional right in terms of section
23 of the
Constitution.”[19]

[28]However, Mthiyane JA concluded that the
applicant had to fail because she had not established that her dismissal
constituted administrative
action as defined in section 1 of PAJA. He reasoned
that from the papers that it was clear that in terminating the applicant’s
contract of employment, Transnet was not exercising public power or performing
a public function in terms of any legislation.
The fact that Transnet, an
organ of state, derives its powers to enter into a contract from a statute does
not mean that its right
to terminate the contract is also derived from public
power.

[29]In a concurrence with the order of Mthiyane JA, Conradie
JA accepted, without deciding, that the dismissal of the applicant constituted
administrative action. However, he found that since the advent of the LRA,
dismissals in the public domain are no longer to be
dealt with as
administrative acts. He reasoned that the legislative intent which is evident
from the LRA is to subject an unfair
dismissal dispute of any employee falling within
its scope to the dispute resolution mechanisms established by the Act. In
addition,
he held that even if the applicant had a cause of action under PAJA,
she was nevertheless limited to relief under the LRA. He
reasoned that the
provisions of section 158(1)(h) of the LRA confer a jurisdiction on the Labour Court to review an administrative
act performed by the State as an employer.[20]

[30]In addition, Conradie JA relied upon the High
Court decisions of Jones & another v Telkom SA Ltd & others,[21]Mcosini v Mancotywa & another[22] and Mgijima v Eastern Cape Appropriate Technology Unit and Another.[23]
These cases involved attempts by employees to bypass the Labour Court by
grounding a cause of action on a violation of fundamental
rights in the
Constitution. In these cases it was held that the fact that the action or
actions of an employer may violate more
than one of the employee’s fundamental
rights does not alter the nature of the cause of action; which was found to be
a labour
matter. Conradie JA accordingly held that a High Court had no
jurisdiction as the claims in issue fell within the exclusive jurisdiction
of
the Labour Court.

[31]Cameron JA wrote a dissenting judgment in which
Mpati DP concurred. He made the following findings.

[32]Firstly, Cameron JA upheld the jurisdiction of
the High Court in matters like that of the applicant, holding that where the
same
conduct gives rise to different causes of action, employees may choose the
forum and the legislation under which they wish to pursue
their actions. Cameron
JA noted that neither the LRA nor PAJA expressly deprives the High Court of
jurisdiction to adjudicate
disputes arising from public sector employment. In
the case of Ms Chirwa, he states the position as follows:

“When Transnet dismissed Ms Chirwa, its
action trenched on two constitutional rights: her right to fair labour
practices,and her right to just administrative action.The Legislature
has augmented the right to fair labour practices by affording employees an
elaborate set of remedies in the LRA.
When conciliation under the LRA failed,
she could have subjected her unfair dismissal claim to arbitration under the
auspices
of the Commission for Conciliation, Mediation and Arbitration (CCMA)
(LRA sections 133-150). She chose not to. Instead, she
launched this
application for relief in express reliance on PAJA, asserting that two causes
of action arose from her dismissal
– one under the LRA; the other under the
Constitution and PAJA. That assertion was in my view right.”[24] (Footnotes omitted.)

He held that the existence of the LRA
does not prevent public sector employees from pressing claims under PAJA and
concluded that
the fact that an employee has remedies under the LRA does not
preclude her or him from approaching the ordinary courts (the High
Court in Ms
Chirwa’s case) in vindication of her PAJA rights.

[33]Secondly, on the question of whether public
sector dismissals constitute administrative action, Cameron JA held that they could
be classified as such. In the case of Ms Chirwa, he found that even if her
employment relationship with Transnet was not regulated
by a particular
statutory provision, the fact was that Transnet is a public entity, created by
statute. That being so, according
to Cameron JA, “[i]ts every act derives from
its public, statutory character, including the dismissal at issue here.”[25]

[34]Thirdly, he agreed with the High Court that Ms
Chirwa was entitled to relief. He however, took a view different from that of
the
High Court on the form of such relief. The High Court had declared Ms
Chirwa’s dismissal to be a nullity and had ordered her
reinstatement to her
former position with the Fund with retrospective effect. Cameron JA, on the
other hand, preferred that the
matter be remitted to Transnet so that it could
hold a fresh and proper hearing.

[35]In effect, the judgment of the Supreme Court of
Appeal makes no definitive finding as to whether conduct by the State and its
organs
as an employer should be reviewable under PAJA, as the Court was split
on this issue. Mthiyane JA held that the termination of
Ms Chirwa’s contract
of employment with Transnet did not amount to exercise of public power and thus
this excludes the applicability
of PAJA; whereas Cameron JA agreed that Ms
Chirwa was at liberty to frame the cause of action under PAJA and should have
been afforded
relief in terms of its provisions.

[36]The separate judgment of Conradie JA takes the
matter no further. Although he accepted that Transnet’s conduct amounted to
administrative
action, he was of the view that the LRA deprived Ms Chirwa of framing
her cause of action under PAJA. He concluded that a complaint
which rises from
a procedurally unfair dismissal for poor work performance is a “quintessential
LRA matter, [for which] relief
under PAJA is not intended to be available.”[26] I agree with this conclusion.

[37]Cameron JA first determined whether the conduct by
Transnet (through the Fund) amounts to administrative action, and only
thereafter
did he turn to the question of jurisdiction. His finding in this
regard is that since the Labour Courts are not afforded general
jurisdiction in employment matters by the LRA, the jurisdiction of the High
Court
“is not ousted simply because a dispute falls within the sphere of
employment relations”.[27] It appears that for Cameron JA, Zenzile remains as relevant
today as it was before the dawn of our new constitutional era.

[38]The reasoning employed by the Appellate Division
in Zenzile cannot be faulted save to point out that the judgment was
delivered in a particular context whereby state employees were not able
to
access processes aligned with natural justice principles in the forum of the
old Labour Relations Actclass=MsoFootnoteReference>>[28]
in instances concerning employment disputes. This, of course, has changed
since the adoption of the present Constitution and
the LRA. Section 185 of the
LRA confers the rights not to be unfairly dismissed or subjected to unfair
labour practices, both
of which extend to employees of the State, including the
employees of Transnet.

[39]The decisions in Zenzile and Sibiya[29] were made in circumstances
where public sector employees were not accorded such rights in terms of the
labour legislation applicable
at the time. In the absence of such rights being
afforded to them there was, in my view, a judicial duty on the judicial
officers
to extend protection to state employees. As the previous paragraph
makes clear, the LRA has changed the content of that duty.

[40]State employees not only have all the benefits
of the protection of the LRA, but also have the right to approach the civil
courts
for relief under PAJA and are thus in a preferred position. Although
one should be loathe depriving a litigant of existing rights
where she or he is
accorded more than one right by the Constitution or any other enabling
legislation, it is unsatisfactory that
the High Court should be approached to
decide review applications in terms of PAJA where the LRA already regulates the
same issue
to be reviewed. Cameron JA himself cautions that—

“[t]he employee’s insistence on approaching the ordinary
courts – when the LRA afforded her ample remedies, including retrospective
reinstatement and compensation if her employer failed to discharge the burden
of proving that her dismissal was both procedurally
and substantively fair – is
not without consequence: the ordinary courts must be careful in
employment-related cases brought
by public employees not to usurp the labour
courts’ remedial powers, and their special skills and expertise.”[30]

[41]It is my view that the existence of a
purpose-built employment framework in the form of the LRA and associated
legislation infers
that labour processes and forums should take precedence over
non-purpose-built processes and forums in situations involving employment-related
matters. At the least, litigation in terms of the LRA should be seen as the
more appropriate route to pursue. Where an alternative
cause of action can be
sustained in matters arising out of an employment relationship, in which the
employee alleges unfair dismissal
or an unfair labour practice by the employer,
it is in the first instance through the mechanisms established by the LRA that
the
employee should pursue her or his claims.

[42]The LRA includes the principles of natural
justice. The dual fairness requirement is one example; a dismissal needs to be
substantively
and procedurally fair. By doing so, the LRA guarantees that an
employee will be protected by the rules of natural justice and
that the procedural
fairness requirements will satisfy the audi alterum partum principle and the
rule against bias. If the process
does not, the employee will be able to
challenge her or his dismissal, and will be able to do so under the provisions
and structures
of the LRA. Similarly, an employee is protected from arbitrary
and irrational decisions, through substantive fairness requirements
and a right
not to be subjected to unfair labour practices.

[43]Judicial review of an administrative decision
can only result in an administrative decision being set aside. This does not
prevent
an employer from restarting a disciplinary process; neither does it
prevent an employee from being dismissed after a fresh hearing
that cures the
original defect. On the other hand, the forums provided for by the LRA allow
for a variety of purpose-built, employment-focused
relief; none of which is
available under the provisions of PAJA.

[44]This line of reasoning has been endorsed by Conradie
JA. I can do no better than to repeat his conclusion:

“If an application for the review of
administrative action succeeds, the applicant is usually entitled to no more
than a setting
aside of the impugned decision and its remittal to the
decision-maker to apply his mind afresh. Except where unreasonableness
is an
issue the reviewing court does not concern itself with the substance of the
applicant’s case and only in rare cases substitutes
its decision for that of
the decision-maker. The guiding principle is that the subject is entitled to a
procedurally fair and
lawful decision, not to a correct one. Under the LRA,
the procedure to have a dismissal overturned or adjusted involves a rehearing
with evidence by the parties and the substitution of a correct decision for an
incorrect one. The scope for relief consequent
upon such an order is
extensive. It is quite unlike that afforded by an administrative law review.”[31] (Footnotes omitted.)

In this Court

[45]Ms Chirwa has approached this Court for leave to
appeal against the majority judgment of the Supreme Court of Appeal. She also
seeks condonation for the late filing of the documents and the defective manner
in which they were lodged. There is no reason
to refuse her condonation application
as the non-compliance with the rules of this Court has not resulted in any
apparent prejudice
to the other parties to the application.

[46]The question of jurisdiction arises in this
matter because dismissals of public sector employees appear to implicate not
only labour
rights but also those of administrative justice. This is at least
what Ms Chirwa is asserting. The two rights are entrenched
in two separate
provisions in the Constitution,[32]
each with its own aims and specialised legislation (the LRA and PAJA) that
seeks to give effect to its own distinct objectives.[33] This was emphasised in South
African Police Union & Another v National Commissioner of the South African
Police Service & Another (SAPU):[34]

“[O]ur Constitution draws an explicit
distinction between administrative action and labour practices as two distinct
species of
juridical acts, and subjects them to different forms of regulation,
review and enforcement.”[35]

[47]The purpose of the administrative justice provisions
is to bring about procedural fairness in dealings between the administration
and members of the public.[36]
The purpose of labour law as embodied in the LRA is to provide a comprehensive
system of dispute resolution mechanisms, forums
and remedies that are tailored
to deal with all aspects of employment. It was envisaged as a one-stop shop for
all labour-related
disputes. The LRA provides for matters such as discrimination
in the workplace as well as procedural fairness; with the view that
even if a labour
dispute implicates other rights, a litigant will be able to approach the LRA
structures to resolve the disputes.

[48]The Explanatory Memorandum on the Labour
Relations Bill (the Memorandum)[37] describes the LRA
mechanisms as a product of an extensive process of negotiation between all the
affected stakeholders.[38]
One of the express aims of the Labour Relations Bill[39] was to address the “lack of an
overall and integrated legislative framework for regulating labour relations”,
which arose as
a result of a multiplicity of laws governing different sectors,
especially the private sector and the public sector.[40] Therefore, the object of the
Bill was to eradicate the “inconsistency, unnecessary complexity, duplication
of resources and
jurisdictional confusion” caused by the multiplicity of laws
by proposing a single statute that was to apply to the whole economy
whilst accommodating
the special features of its different sectors.[41]

[49]Section 210 of the LRA provides:

“If any conflict, relating to the matters
dealt with in this Act, arises between this Act and the provisions of any other
law
save the Constitution or any Act expressly amending this Act, the
provisions of this Act will prevail.”

[50]This section heralds the LRA as the pre-eminent
legislation in labour matters that are dealt with by that Act. Only the
Constitution
itself or a statute that expressly amends the LRA can take
precedence in application to such labour matters. When PAJA was promulgated,
five years after the current LRA came into force, section 210 remained
untouched. The legislature, aware of the implications
of this provision in the
LRA, enacted PAJA without altering section 210.[42] This is significant, in that
it would appear that the legislature intended that PAJA should not detract from
the pre-eminence
of the LRA and its specialised labour disputes mechanisms.

[51]In the light of the aims of the LRA, the CCMA
was proposed as a forum which “recognizes and actively promotes private
procedures
negotiated between the parties for the resolution of disputes and
adopts a simple non-technical and non-jurisdictional approach
to dispute
resolution.”[43]

[52]In a similar vein, this Court in National
Education Health and Allied Workers Union v University of Cape Town and Others(NEHAWU)[44]made the following finding about the specialised Labour Court structure created
by the LRA:

“The LAC is a specialised court, which
functions in a specialised area of law. The LAC and the Labour Court were
established
by Parliament specifically to administer the LRA. They are charged
with the responsibility for overseeing the ongoing interpretation
and
application of the LRA and development of labour relations policy and
precedent. Through their skills and experience, Judges
of the LAC and the Labour Court accumulate the expertise which enables them to resolve labour disputes
speedily.”[45]

[53]It is in this context that section 157 of the
LRA and its consequences must be analysed. Section 157 provides:

“(1) Subject to the Constitution and section 173, and except
where this Act provides otherwise, the Labour Court has
exclusive jurisdiction
in respect of all matters that elsewhere in terms of this Act or in terms of
any other law are to be determined
by the Labour Court.

(2) The Labour Court has concurrent jurisdiction with the
High Court in respect of any alleged or threatened violation
of any fundamental
right entrenched in Chapter 2 of the Constitution of the Republic of South Africa, 1996, and arising from—

(a) employment
and from labour relations;

(b) any dispute over the constitutionality of any executive
or administrative act or conduct, or any threatened executive
or administrative
act or conduct, by the State in its capacity as an employer; and

(c) the application of any law for the administration of
which the Minister is responsible.

(3) Any reference to the court in the Arbitration Act, 1965
(Act No. 42 of 1965), must be interpreted as referring
to the Labour Court when
an arbitration is conducted under that Act in respect of any dispute that may
be referred to arbitration
in terms of this Act.

(4) (a) The Labour Court may refuse to determine any
dispute, other than an appeal or review before the
Court, if the Court is not
satisfied that an attempt has been made to resolve the dispute through
conciliation.

(b) A certificate issued by a commissioner or a
council stating that a dispute remains unresolved
is sufficient proof that an
attempt has been made to resolve that dispute through conciliation.

(5) Except as provided in section 158 (2), the Labour Court does not have jurisdiction to adjudicate an unresolved dispute
if this Act
requires the dispute to be resolved through arbitration.”

[54]The authorities that have attempted to grapple
with this provision have come to conflicting interpretations. Keeping in mind
the
aim of the LRA to be a one-stop shop dispute resolution structure in the
employment sphere, it is not difficult to see that the
concurrent jurisdiction
provided for in section 157(2) of the LRA is meant to extend the jurisdiction
of the Labour Court to employment
matters that implicate constitutional rights.
However, this cannot be seen as derogating from the jurisdiction of the High
Court
in constitutional matters, assigned to it by section 169 of the
Constitution, unless it can be shown that a particular matter falls
into the
exclusive jurisdiction of the Labour Court.[46]

Ms Chirwa’s submissions

[55]In this Court Ms Chirwa has persisted with her
contention that the High Court had concurrent jurisdiction with the Labour Court in
respect of her claim. She further contends that her dismissal as an
employee of an organ of state amounts to an administrative
act, as contemplated
in the Constitution and in section 1 of PAJA, because it constitutes the
exercise of public power. In the
alternative, she relies on section 195 of the
Constitution which specifies a number of constitutional controls that govern the
public administration.[47]
Both arguments raise constitutional issues.[48]

Does the High Court have
concurrent jurisdiction with the Labour Court in this matter?

[56]In Fredericks,[49] this Court considered the
scope of the jurisdiction of the High Court to determine certain complaints
arising out of an employment
relationship. That case concerned the refusal by
the Department of Education to approve applications for voluntary retrenchment
packages.
Following the first democratic elections in 1994 there was an amalgamation of a
number of education departments, and
it was realised that there was a need to
reduce the number of teachers. An agreement was reached at the Education
Labour Relations
Council concerning amongst other things, a process of
voluntary retrenchments in terms of which teachers would be permitted to apply
for voluntary severance packages. Initially, applications for voluntary
retrenchments were approved but were later refused.
The applicants in that
case challenged the refusal of their applications on the grounds that it infringed
their rights under section
9 (the right to equality) and section 33 (right to
just administrative action) of the Constitution. The High Court held that the
dispute concerned a collective agreement, a matter governed by section 24 of
the LRA and in respect of which the Labour Court had
exclusive jurisdiction
under section 157(1) of the LRA.

[57]On appeal to this Court, the applicants alleged
that the State, in its capacity as employer, did not act procedurally fairly in
the administration of the collective agreement, and in particular in
considering their applications for voluntary retrenchment packages.
This Court
found that the applicants’ claim was not based on contract but was based on
their constitutional rights to administrative
justice and equal treatment and
flowed “from the special duties imposed upon the state by the Constitution.”[50]

[58]Fredericksis distinguishable from the present case. Notably, the applicants
in Fredericks expressly disavowed any reliance on section 23(1) of the
Constitution, which entrenches the right to a fair labour practice. Nor
did
the claimants in Fredericks rely on the fair labour practice provisions
of the LRA or any other provision of the LRA. The Court therefore did not
consider,
but left open, the question whether a dispute arising out of the
interpretation or application of a collective agreement can also
give rise to a
constitutional complaint as envisaged in section 157(2) of the LRA.

[59]The starting point for the enquiry as to whether
the High Court has concurrent jurisdiction with the Labour Court in respect of
Ms Chirwa’s claim is section 157(1) of the LRA, which provides that the Labour
Court has exclusive jurisdiction over all matters
that “are to be determined by
the Labour Court.” Thus where exclusive jurisdiction over a matter is
conferred upon the Labour
Court by the LRA or other legislation, the
jurisdiction of the High Court is ousted.[51]
The effect of section 157(1) is therefore to divest the High Court of
jurisdiction in matters that the Labour Court is required
to decide except
where the LRA provides otherwise.

[60]It is apparent from the provisions of section
157(1) that it does not confer “exclusive jurisdiction upon the Labour Court generally
in relation to matters concerning the relationship between employer
and employee.”[52]
It seems implicit from the provisions of this section that the jurisdiction of
the High Court is not ousted simply because a
dispute is one that falls within
the overall sphere of employment relations. The jurisdiction of the High Court
will only be
ousted in respect of matters that, in the words of section 157(1)
“are to be determined by the Labour Court.” This is evident
from section
157(2), which contemplates concurrent jurisdiction in constitutional matters
arising from employment and labour relations.

[61]Ms Chirwa’s complaint is that Mr Smith “failed
to comply with the mandatory provisions of items 8 and 9 of Schedule 8 to the
LRA.” Schedule 8 contains the Code that sets out guidelines that must be taken
into account by “[a]ny person considering
whether or not the reason for
dismissal is a fair reason or whether or not the dismissal was effected in
accordance with a fair
procedure”.[53]
Thus, unlike in Fredericks, the applicant here expressly relies upon
those provisions of the LRA which deal with unfair dismissals. Indeed, this is
the
claim she asserted when she approached the CCMA. It is apparent that when
she approached the High Court, she made it clear that
her claim was based on a
violation of the provisions of the LRA, including items 8 and 9 of Schedule 8 to
that Act. However,
she elected to vindicate her rights not under the
provisions of the LRA, but instead under the provisions of PAJA.

[62]The LRA provides procedures for the resolution
of labour disputes through statutory conciliation, mediation and arbitration,
for
which the CCMA is established; and establishes the Labour Court and the Labour Appeal Court as superior courts, with exclusive jurisdiction
to decide matters
arising from it. Unfair dismissals and unfair labour practice are dealt with
in Chapter VIII. Section 188
provides that a dismissal is unfair if the
employer fails to prove that the dismissal was for a fair reason or that the
dismissal
was effected in accordance with a fair procedure. Item 9 in Schedule
8 to the LRA sets out the guidelines in cases of dismissal
for poor work
performance.

[63]Ms Chirwa’s claim is that the disciplinary
enquiry held to determine her poor work performance was not conducted fairly
and therefore
her dismissal following such enquiry was not effected in
accordance with a fair procedure. This is a dispute envisaged by section
191
of the LRA, which provides a procedure for its resolution: including
conciliation, arbitration and review by the Labour Court.
The dispute
concerning dismissal for poor work performance, which is covered by the LRA and
for which specific dispute resolution
procedures have been created, is
therefore a matter that must, under the LRA, be determined exclusively by the
Labour Court.
Accordingly, it is my finding that the High Court had no
concurrent jurisdiction with the Labour Court to decide this matter.

[64]Ms Chirwa was correct in referring her dismissal
to the CCMA as an unfair dismissal in terms of section 191(1)(a)(ii) of the
LRA.
The constitutional right she sought to vindicate is regulated in detail by
the LRA. In this regard, the remarks made by Ngcobo
J in relation to a
specialist tribunal in Hoffmann v South African Airways[54] are apposite. Ngcobo J, when
invited to express an opinion on SAA’s policy to test aspirant employees for
HIV/AIDS, said the
following:

“The question of testing in order to
determine suitability for employment is a matter that is now governed by s
7(2), read with
s 50(4), of the Employment Equity Act. In my view there is
much to be said for the view that where a matter is required by statute to
be dealt with by a specialist tribunal, it is that tribunal that must deal with
such a
matter in the first instance. The Labour Court is a specialist
tribunal that has a statutory duty to deal with labour and employment issues.
Because of
this expertise, the Legislature has considered it appropriate to
give it jurisdiction to deal with testing in order to determine
suitability for
employment. It is therefore that Court which, in the first instance, should
deal with issues relating to testing
in the context of employment.”[55] (Footnote omitted.) (Emphasis
added.)

The LRA is the primary source in
matters concerning allegations by employees of unfair dismissal and unfair
labour practice irrespective
of who the employer is, and includes the State and
its organs as employers.

[65]Ms Chirwa’s case is based on an allegation of an
unfair dismissal for alleged poor work performance. The LRA specifically
legislates
the requirements in respect of disciplinary enquiries and provides
guidelines in cases of dismissal for poor work performance.[56] She had access to the
procedures, institutions and remedies specifically designed to address the
alleged procedural unfairness
in the process of effecting her dismissal. She
was, in my view, not at liberty to relegate the finely-tuned dispute resolution
structures created by the LRA. If this is allowed, a dual system of law would
fester in cases of dismissal of employees by employers,
one applicable in civil
courts and the other applicable in the forums and mechanisms established by the
LRA.

[66]Ms Chirwa is not afforded an election. She
cannot be in a preferential position simply because of her status as a public
sector
employee. There is no reason why this should be so, as section 23 of
the Constitution, which the LRA seeks to regulate and give
effect to, serves as
the principal guarantee for all employees. All employees (including public
service employees, save for the
members of the defence force, the intelligence
agency and the secret service, academy of intelligence and Comsec[57]), are covered by unfair
dismissal provisions and dispute resolution mechanisms under the LRA.[58] The LRA does not
differentiate between the State and its organs as an employer, and any other employer.
Thus, it must be concluded
that the State and other employers should be treated
in similar fashion.

[67]Nonetheless, Ms Chirwa chose to abandon the
process she had started in the CCMA and approached the High Court where she
contended
that her right to administrative justice, protected by section 33 of
the Constitution, had been breached. She was ill-advised
in abandoning the
process that she had started in the CCMA. This is the route that she should
have followed to its very end.

[68]Further, even if Ms Chirwa, or a similarly
situated employee, sought to challenge the dismissal by relying on a
constitutional issue
other than one implemented through PAJA (as has been done here
by relying on section 195 of the Constitution), for example discrimination,
it
is necessary that all remedies under the LRA are exhausted before raising such
an issue in a different forum. This is required
so that the LRA and its
structures, which were crafted to provide a comprehensive framework for labour
dispute resolution, are
not undermined.

[69]However, this line of reasoning will not apply
if Ms Chirwa had sought to challenge the provisions of the LRA on the basis
that
they were inadequate in providing protection to employees in the form
contemplated by section 23 of the Constitution. This would
raise a
constitutional matter that is justiciable in the High Court. This is not the
case in this matter.

[70]The provisions of section 157(2)[59] of the LRA has resulted in
complex jurisdictional disputes insofar as determining where the jurisdiction
of the Labour Court ends
and that of the High Court begins, and also insofar as
determining whether public sector employees are at liberty to circumvent
the
provisions of the LRA and frame their causes of action as ones arising under
the provisions of PAJA. The choice of an appropriate
forum by public sector
employees in instances where they are at loggerheads with their employers
concerning dismissal has been
a difficult one. The High Courts and the Supreme
Court of Appeal in the present case have not been unanimous on the issue.[60]

[71]To the extent that PAJA and the LRA overlap in
providing public sector employees with remedies for labour-related issues,
there
is an urgent need for the legislature to revisit the provisions of
section 157(2) of the LRA to ensure development of a coherent
legal framework
within which all labour disputes may be speedily resolved.

Did Ms Chirwa’s dismissal amount
to administrative action?

[72]Only acts of an administrative nature are
subject to the administrative justice right in section 33(1) of the
Constitution. The
focus of the enquiry as to whether conduct constitutes
administrative action is not on the position which the functionary occupies
but
rather on the nature of the power being exercised. This Court has held in a
number of cases that in this enquiry what matters
is not so much the
functionary as the function; that the question is whether the task itself is
administrative or not and that
the focus of the enquiry is not on the arm of
government to which the relevant functionary belongs but on the nature of the
power
such functionary is exercising.[61]

[73]My finding that the High Court does not have
concurrent jurisdiction with the Labour Court in this matter makes it
unnecessary that
I should arrive at a firm decision on the question of whether
the dismissal of Ms Chirwa by Transnet constitutes administrative
action. If,
however, I had been called upon to answer that question, I would have come to
the same conclusion as Ngcobo J: namely,
that the conduct of Transnet did not
constitute administrative action under section 33 of the Constitution for the
reasons that
he advances in his judgment.[62]

Applicability of section 195 of
the Constitution

[74]Even if the applicant was permitted to bypass
the specialised framework of the LRA in the attempt to challenge her dismissal,
the
reliance on section 195 is misplaced. This is illustrated by the reasoning
in Institute for Democracy in South Africa and Others v African National
Congress and Others (IDASA).[63] The Court in that case relied on the decision in Minister of
Home Affairs v National Institute for Crime Prevention and the Reintegration of
Offenders (NICRO) and Others,[64] where it was held:

“The values enunciated in s 1 of the
Constitution are of fundamental importance. They inform and give substance to
all the provisions
of the Constitution. They do not, however, give rise to
discrete and enforceable rights in themselves. This is clear not only
from the
language of s 1 itself, but also from the way the Constitution is structured
and in particular the provisions of ch 2
which contains the Bill of Rights.”[65]

[75]Consequently, the court in IDASA held
that—

“. . . the same considerations apply to the other sections of the
Constitution . . . [including] 195(1). These sections all have
reference to
government and the duties of government, inter alia, to be accountable and
transparent. . . . In any event, these
sections do not confer upon the
applicants any justiciable rights that they can exercise or protect by means of
access to the respondents’
donations records. The language and syntax of these
provisions are not couched in the form of rights, especially when compared
with
the clear provisions of ch 2. Reliance upon the sections in question for
purposes of demonstrating a right is therefore
inapposite.”[66]

[76]Therefore although section 195 of the
Constitution provides valuable interpretive assistance it does not found a right
to bring
an action.

Conclusion

[77]Although on her pleadings the applicant appears
to be out of court, she is not left without a remedy. She must follow the
route
created by the LRA and exhaust all the remedies that are still available
to her within that specialised framework. A condonation
procedure is provided
for by section 136(1) of the LRA, and thus the applicant may still pursue the
route of arbitration. If
she is dissatisfied with the outcome, she has the
further option of pursuing the review of the arbitration award in the Labour Court,
in terms of section 145 of the LRA.

Costs

[78]Although ultimately unsuccessful, Ms Chirwa has
raised important constitutional issues. As such, it would not be appropriate
to
award costs against her. Accordingly, I make no order as to costs.

Order

[79]The following order is made:

(a)The application for leave to appeal is granted.

(b)Condonation for non-compliance with the Rules of this Court is
granted.

[80]I have had the benefit of reading the judgment
prepared by Skweyiya J. I concur in the order proposed by him. There are two
troublesome issues for me that Skweyiya J does not address. The one is the
scope of the operation of the provisions of section
157(1) and (2), and the
other, which flows from the first, is the characterisation of dismissal as
administrative action. These
two issues have given rise to complex
jurisdictional problems for both the High Court and the Labour Court. There
are conflicting
judicial views on how to resolve these issues. Far from
abating, the problems generated by these issues are becoming more frequent
in
the courts as illustrated by the present case. These issues arise squarely in
this case. And it is these issues that I deal
with in this judgment. The
manner in which I resolve them, leads me to the same destination as that
reached by Skweyiya J.

[81]The issues presented in this case are a variant
of familiar problems that have arisen since the enactment of section 157(2) of
the
Labour Relations Act, 1995 (LRA),[1]
which confers concurrent jurisdiction on the Labour Court with the High Court
in certain matters.[2]
This provision inevitably gives rise to difficult problems of jurisdiction of
the Labour Court and the High Court in labour and
employment matters. In the
abstract these problems come to courts as ordinary questions of statutory
construction but they involve
a more complicated and perspicacious process than
is conveyed by the elusive phrase “ascertaining the intention of the
legislature”.
They involve issues of “mystifying complexity”[3] and “jurisdictional
complexities”.[4]
The irony is that section 157(2) has given rise to the very problems that the
LRA was supposed to address. Two of the primary
objects of the LRA, as I will
demonstrate later in this judgment, are to address the problem of overlapping
and competing jurisdictions
and the use of different courts. These problems
conspired to give rise to jurisdictional complexities and prevent the
development
of a coherent jurisprudence on labour and employment relations.[5]

[82]In Langeveldt v Vryburg Transitional Local
Council and Others,[6]
the Labour Appeal Court considered some of the jurisdictional problems arising
from the overlap in jurisdiction between the Labour
Court and the High Court.
The Court noted that within four years of the Labour Court becoming fully
operational, a number of
employment and labour matters came before the High
Courts. In those cases, the High Courts were confronted time and again with
the question whether they had jurisdiction despite the existence of the Labour Court. After examining some fifteen decisions,
the Labour Appeal Court concluded
that these cases clearly reveal the jurisdictional complexities which the
provisions of section
157(2) have generated. It called for the repeal of
section 157(2) so as to deprive the High Court of jurisdiction in employment
and labour matters. That was in 2001. The provision is still on our statute
books.

[83]The Labour Appeal Court in Langeveldt
also highlighted the nature of the problems that have not only arisen, but also
those that were likely to arise as a consequence
of overlapping jurisdictions.
Prophetically, the Court identified as one of the problems likely to arise, the
case of an employee
who challenges his or her dismissal in the High Court on
the grounds that it is unlawful or unconstitutional and simultaneously
initiates proceedings in the Commission for Conciliation, Mediation and
Arbitration (CCMA), but has the latter proceedings stayed
pending the outcome
of the proceedings in the High Court.

[84]In the present case we are concerned with a
variant of that problem: the employee initiated proceedings in the CCMA on the
grounds
that her dismissal was unfair. When conciliation failed to resolve the
dispute, she did not proceed with the CCMA process; instead
she instituted
proceedings in the High Court alleging that in dismissing her, her employer had
failed to comply with the mandatory
provisions of the LRA and that its conduct
was therefore in breach of her constitutional right to just administrative
action as
given effect by the Promotion of Administrative Justice Act, 2000
(PAJA).[7] She did so
because she was advised that she had two causes of action; one flowing from the
provisions of the LRA, and another
flowing from the right to just
administrative action guaranteed in section 33 of the Constitution as given
effect to by the provisions
of PAJA.

[85]Ordinarily and as a matter of judicial policy,
even if the High Court had concurrent jurisdiction with the Labour Court in
this
matter, it should be impermissible for a party to initiate the process in
the CCMA alleging one cause of action, namely, unfair
labour practice, and
halfway through that process, allege another cause of action and initiate
proceedings in the High Court.
It seems to me that where two courts have
concurrent jurisdiction, and a party initiates proceedings in one system
alleging a particular
cause of action, the party is bound to complete the
process initiated under the system that she or he has elected. Concurrent
jurisdiction means that a party must make an election before initiating
proceedings. A party should not be allowed to change
his or her cause of
action mid-stream and then switch from one court system to another. In effect,
the applicant is inviting
us to countenance such a practice. It is an
invitation which, in my view, should be firmly rejected.

[86]But the issues raised by the applicant are too
important for this case to be disposed of on this narrow basis. The two
questions
which flow from the applicant’s allegations are, firstly, the scope
of the operation of the provisions of section 157(2) of the
LRA, and secondly,
whether the applicant had two causes of action, one flowing from the provisions
of the LRA and another from
the right to just administrative action in section
33 of the Constitution as given effect to by PAJA. I will deal with these
questions in turn.

The scope of the provisions of
section 157 of the LRA

[87]It will be convenient, first, to identify the
statutory provisions applicable; second to consider the views of the Supreme
Court
of Appeal and other courts on this issue; then to identify the primary
objects of the LRA that are relevant to the determination
of this issue; and
ultimately to consider the meaning to be attributed to section 157(2).

[88]Section 157 of the LRA governs the jurisdiction
of the Labour Court and in relevant part provides:

“(1) Subject to the Constitution and section 173, and except
where this Act provides otherwise, the Labour Court has
exclusive jurisdiction
in respect of all matters that elsewhere in terms of this Act or in terms of
any other law are to be determined
by the Labour Court.

(2) The Labour Court has concurrent jurisdiction with the
High Court in respect of any alleged or threatened violation
of any fundamental
right entrenched in Chapter 2 of the Constitution of the Republic of South Africa, 1996, and arising from—

(a) employment and from
labour relations;

(b) any dispute over the constitutionality of any executive
or administrative act or conduct, or any threatened executive
or administrative
act or conduct, by the State in its capacity as an employer; and

(c) the application of any law for the administration of
which the Minister is responsible.”

[89]One of the questions which the courts below had
to consider was whether the applicant’s complaint was justiciable in the High
Court. Four judges of the Supreme Court of Appeal held that the High Court had
jurisdiction to adjudicate the applicant’s complaint.
Mthiyane JA with Jafta
JA concurring, held that where an employment dispute raised an alleged
violation of a constitutional right,
a litigant is not confined to the remedies
under the LRA and the jurisdiction of the High Court is not ousted either. He
cited
with approval a statement from the High Court decision in Mbayeka v
MEC for Welfare, Eastern Cape[8]
to the effect that the Labour Court will never enjoy exclusive jurisdiction
even in matters concerning unfair labour practice because
the right to fair
labour practices is a constitutional right guaranteed in section 23.[9] Cameron JA, with Mpati JA
concurring, approached the matter on the footing that the High Court had
jurisdiction. He found that
when Transnet dismissed the applicant, it trenched
on two constitutional rights, namely, her right to fair labour practices and
her right to just administrative action.[10]
Conradie JA held that a complaint arising from a procedurally unfair dismissal
for work performance, is a quintessentially LRA
matter.[11] He concluded that the
applicant went to the wrong forum.[12]

[90]The views expressed by Cameron and Mthiyane JJA
have subsequently been reaffirmed in two recent decisions of the Supreme Court
of
Appeal.[13]
The views of the Supreme Court of Appeal on the provisions of section 157 are
summarised in Boxer Superstores Mthatha and Another v Mbenya as follows:

“The exclusive jurisdiction of the Labour Court has been carefully circumscribed in recent years. Section 157(1) of the LRA
provides
that subject to the Constitution and the Labour Appeal Court’s
jurisdiction, and except where the LRA itself provides otherwise,
‘the labour
court has exclusive jurisdiction in respect of all matters that elsewhere in
terms of this Act or in terms of any
other law are to be determined by the
labour court’. Despite the seeming breadth of this provision, it is now well
established
that—

(i)(as Peko ADJP observed in dismissing the
jurisdictional objection) s 157 does not purport to confer exclusive
jurisdiction on the
Labour Court generally in relation to matters concerning
the relationship between the employer and employee (Fedlife Assurance Ltd v
Wolfaardt), and since the LRA affords the Labour Court no general
jurisdiction in employment matters, the jurisdiction of the High Court is
not
ousted by s 157(1) simply because a dispute is one that falls within the
overall sphere of employment relations (Fredericks and Others v MEC for
Education and Training, Eastern Cape, and Others);

(ii)the LRA’s remedies against conduct that may constitute an unfair
labour practice are not exhaustive of the remedies that might
be available to
employees in the course of the employment relationship—particular conduct may
not only constitute an unfair labour
practice (against which the LRA gives a
specific remedy), but may give rise to other rights of action: provided the
employee’s
claim as formulated does not purport to be one that falls within the
exclusive jurisdiction of the Labour Court, the High Court
has jurisdiction
even if the claim could also have been formulated as an unfair labour practice
(United National Public Servants Association of SA v Digomo NO and Others);

(iii)an employee may therefore sue in the High Court for a dismissal that
constitutes a breach of contract giving rise to a claim for
damages (as in Fedlife);

(iv)similarly, an employee may sue in the High Court for damages for a
dismissal in breach of the employer’s own disciplinary code
which forms part of
the contract of employment between the parties (Denel (Edms) Bpk v Vorster).”[14] (Footnotes omitted.)

[91]The views expressed by the Supreme Court of
Appeal and other courts on section 157 highlight the fundamental problem,
namely, how
to reconcile the provisions of subsections (1) and (2). Subsection
(1) purports to confer on the Labour Court “exclusive jurisdiction
in respect
of all matters that elsewhere in terms of [the LRA] or in terms of any other
law are to be determined by the Labour
Court.” On the other hand subsection
(2) confers on the Labour Court “concurrent jurisdiction with the High Court in
respect
of any alleged or threatened violation of any fundamental right
entrenched in [the Bill of Rights]”. However the alleged or
threatened
violation must arise from the employment or labour relations or
constitutionality of any executive or administrative
act of the State as an
employer.

[92]In United National Public Servants
Association of SA v Digomo and Others[15]
the Supreme Court of Appeal held that provided the employee’s claim as
formulated does not purport to be one that falls within
the exclusive
jurisdiction of the Labour Court, the High Court has jurisdiction even if the
claim could have been formulated as
an unfair labour practice. The difficulty
with this view is that it leaves it to the employee to decide in which court
the dispute
is to be heard. By characterising the manner in which the
disciplinary hearing was conducted as unfair dismissal, the employee
could have
the dispute heard in the Labour Court. Yet by characterising the same dispute
as constituting a violation of a constitutional
right to just administrative
action, the employee could have the same dispute heard in the High Court. It
could not have been
the intention of the legislature to bring about this
consequence.

[93]Some High Courts, notably in Mgijima v
Eastern Cape Appropriate Technology Unit and Another[16] and Mcosini v Mancotywa and
Another,[17]
have expressed the view that courts should look not at how the employee has
characterised the dispute but the substance of the
dispute. If the substance
and the nature of the dispute is one that falls under the LRA, the Labour Court has exclusive jurisdiction
under section 157(1). These cases hold that what is
in essence a labour dispute under the LRA should not be labelled a
constitutional
dispute simply by reason of the fact that the same sets of facts
and the issues raised could also support a conclusion that the
employer conduct
complained of amounts to a violation of a right entrenched in the
Constitution. The exclusive jurisdiction of
the Labour Court cannot be avoided
by alleging a fundamental right other than the right to fair labour practices.[18]

[94]In Jones and Another v Telkom SA Ltd and
Others,[19]
the Pretoria High Court expressed a similar view holding that:

“In this case I am convinced that a vital
component of the issue to be determined concerns unfair dismissals, unfair
labour practices
and dismissals based on operational requirements, all issues
that ultimately resort under the exclusive jurisdiction of the Labour
Court. The applicants have attempted to disavow a reliance on unfair dismissal in
their prayers, but it is clear from the body
of their affidavits that they
consider the process adopted by the first respondent as one that has unfairly
led to the termination
of their employment, either as from 31 March 2005 or
from 31 May 2005.

It does not help to say that it is a
constitutional issue. Even to determine whether the process followed was fair
constitutionally
speaking; one will have to begin to establish whether it was
fair in terms of the Labour Relations Act. Constitutional issues
cannot be
determined in the abstract. In this case what is at stake is the fairness of a
restructuring process. Whether the
process was fair has to be judged according
to the facts of the case and in the context of the national legislation that
gives
effect to s 23(1) of the Constitution.”[20]
(Footnotes omitted.)

[95]However in Boxer Superstores the Supreme
Court of Appeal expressed a different view. There it was contended that what
matters is not the form of the employee’s
complaint but the substance of the
complaint.[21]
The Supreme Court of Appeal held that the focus on the substance of the dispute
leaves out of account the fact that jurisdictional
limitations often involve
questions of form.[22]
It noted that the employee in that case “formulated her claim carefully to
exclude any recourse to fairness, relying solely
on contractual unlawfulness.”[23] This illustrates the
difficulty of relying on form rather than substance to which I alluded
earlier. This would enable an astute
litigant simply to bypass the whole
conciliation and dispute resolution machinery created by the LRA and rob the
Labour Courts
of their need to exist.[24]
But is this what the legislature intended when it enacted the provisions of
section 157(2)?

[96]In expressing their views, the courts in Mgijima,
Mcosini and Jones, relied on the intention of the legislature in
enacting the LRA. In Mgijima, the Court expressed its view as follows:

“In my view it could not have been the
intention of the Legislature to allow an employee to raise what is essentially
a labour
dispute in terms of the Act as a constitutional matter under the
provisions of s 157(2) of the Act. In my view it would run counter
to the
purpose and objects of the Act with which I have dealt earlier in this judgment.
To conclude otherwise would mean that
the High Court is effectively called upon
to determine a right which has been given effect to and which is regulated by
the Act.
To hold otherwise would be to ignore the remainder of the provisions
of the Act and would enable the astute litigant simply to bypass
the whole
conciliation and dispute resolution machinery created by the Act. This may
give rise to ‘forum shopping’ simply
because it is convenient to do so or
because one of the parties failed to comply with the time-limits laid down by
the Act as contended
by the first respondent in the present matter.”[25]

[97]In my view, the provisions of subsection (1) and
subsection (2) of section 157 can be reconciled by having regard to the primary
objects of the LRA.

The primary objects of the LRA

[98]Section 3(a) and (b) of the LRA requires that
the provisions of the LRA must be construed in the light of the primary objects
of
the LRA and the provisions of the Constitution. Two of the problems that
existed prior to the enactment of the LRA were (a) the
multiplicity of laws
governing labour and employment relations; and (b) the overlapping and
competing jurisdictions of different
courts.

Multiplicity
of laws

[99]Prior to the enactment of the LRA there were
different statutes governing the labour and employment relations. The Labour
Relations
Act, 1956[26]
applied partly to private sector employees and partly to public sector
employees. The Public Service Labour Relations Act, 1994,[27] which was largely modelled on
the 1956 LRA, governed part of the public service employees. The Education
Labour Relations Act,
1993[28]
applied to educators. The employees in the agricultural sector were governed
by the Agricultural Labour Act, 1993.[29]
Members of the police force were governed by separate legislation.[30] There were employees such as
domestic workers who were not protected by legislation.

[100]These multiple pieces of legislation created inconsistency and
unnecessary duplication of resources as well as jurisdictional problems.
The
Explanatory Memorandum identified some of the consequences of the multiplicity
of laws:

“The multiplicity of laws regulating labour
relations has had a number of consequences. These include—

inconsistency, uncertainty and
complexity. For example, each Act has a different
unfair labour practice definition and the Industrial Court is required to
determine disputes
in terms of these different definitions;

inequality.
The state is charged by the Constitution to treat all workers equally, yet the
different Acts, either in their formulation or
through judicial interpretation,
result in unjustifiable inequality of treatment. This inequality will deepen
over time because
different institutions are charged with interpreting and
giving effect to the different laws and different Ministries administer
them.
As things stand, public service employees and teachers are disadvantaged
because the statutes applicable to them, while
based on the LRA, abandon many
of its checks and balances;

duplication of resources and administration. Separate Acts and administrative structures place an unnecessary
financial burden on taxpayers and the state;

overlap of private and public sector
activities. Certain of the state’s activities
place it in competition with the private sector. To have separate negotiating
forums for
what is essentially one industry is not logical; and

jurisdictional problems. Given the constantly changing interface between the public and
private sectors resulting from privatization, the expansion of
the state’s activities
and other factors, it is difficult for parties to know which statute regulates
their activities.”[31]

[101]Against this background, the drafters of the LRA proposed “a
comprehensive framework of law governing the collective relations
between
employers and trade unions in all sectors of the economy.”[32] As the Explanatory Memorandum
explains, the Bill was intended to apply “to all sectors with the exception of
the members of
the South African National Defence Force, agencies or services
established in terms of the Intelligence Services Act, and the South
African
Police Service.”[33]
The principle underlying the LRA is “one Act for all sectors”.[34] Explaining the rationale of
one statute for all sectors, the drafters of the LRA said:

“Firstly, the changing nature of the state
and the extension of its activities into areas such as education, health care
and welfare
and commercial endeavours such as forestry, agriculture, etc have
undermined the notion that its employees are its servants. Secondly,
developments at the international level have encouraged the erosion of the
public/private labour law divide. ILO Convention 87
of 1948 concerning Freedom
of Association and Protection of the Right to Organize and the European Social
Charter apply equally
to the private and public sectors. These international
requirements, together with Conventions 98 and 151 of 1978, guarantee to
public
and private sector employees (excluding the police and armed forces) the full
range of freedom of association and collective
bargaining rights.

The starting point must be that all workers
should be treated equally and any deviation from this principle should be
justified.
The mere fact that employees are state employees is not sufficient
justification. Restrictive treatment of employees must be justified
on the
basis of the service that they perform and, even then, it should be narrower
than necessary and should be accompanied by
reciprocal guarantees. For
instance, essential services must be restrictively defined and where the right
to strike is denied
it must be replaced with final and binding arbitration.
The political dimension of the state as employer, more particularly the
fact
that its revenue is sourced from taxation and that it is accountable to the
legislature, gives rise to unique and distinctive
characteristics of state
employment. For example, the state can invoke legislation to achieve its
purposes as employer and its
levels of staffing, remuneration and other matters
are often the product of political and not commercial considerations. This
uniqueness does not, however, justify a separate legal framework.”[35]

[102]Consistently with this objective, the LRA brings all employees,
whether employed in the public sector or private sector under it,
except those
specifically excluded. The powers given to the Labour Court under section
158(1)(h) to review the executive or administrative
acts of the State as an
employer give effect to the intention to bring public sector employees under
one comprehensive framework
of law governing all employees. So too is the
repeal of the legislation such as Public Service Labour Relations Act and the
Education
Labour Relations Act. One of the manifest objects of the LRA is
therefore to subject all employees, whether in the public sector
or in the private
sector, to its provisions except those who are specifically excluded from its
operation.

Overlapping
and competing jurisdictions

[103]The other defect which was associated with the old labour relations
regime was the overlapping and competing jurisdictions and the
use of different
courts to adjudicate labour and employment issues. The Industrial Court and
the former Labour Appeal Court did
not have exclusive jurisdiction in labour
matters. The Supreme Court, now the High Court, retained jurisdiction to review
proceedings
of the Industrial Court. Strikes and lock-outs could be
interdicted in either the Industrial Court or the Supreme Court. Proceedings
could be brought in respect of a breach of contract or breach of a statutory
duty or delict in relation to unlawful industrial
action in the Supreme Court.[36] A forum was largely
determined not by the nature of the dispute but by the sector in which an
employee was employed. A complaint
about the unfairness of the procedure
followed in a dismissal case could be brought in the Industrial Court if the
employee was
in the private sector, and in the Supreme Court if the employee
was in the public sector. All of this prevented the development
of a coherent
labour and employment relations jurisprudence.

[104]To address this problem, the LRA creates a specialised set of forums
and tribunals to deal with labour and employment-related matters.
It
establishes an interlinked structure consisting of, among others, various
bargaining councils, the CCMA, the Labour Court and
the Labour Appeal Court.
It also creates procedures designed to accomplish the objective of simple,
inexpensive and accessible
resolution of labour disputes, which is one of the
purposes of the LRA. In this scheme the role of the CCMA and the exclusive
jurisdiction of the Labour Court are vital. The Labour Court does not itself
generally hear disputes as a court of first instance.
But neither does the
CCMA have exclusive jurisdiction as against the Labour Court. The Labour Court sits as a court of first instance
in certain matters.[37] And in some cases it does so
after conciliation has been unsuccessful.[38]
The dispute resolution scheme of the LRA is therefore all-embracing and leaves
no room for intervention from another court.[39]

[105]The declared intention of the LRA is “to establish the Labour Court and the Labour Appeal Court as superior courts with exclusive
jurisdiction to
decide matters arising from the [LRA]”.[40]
These are specialised courts which function in a specialised area of law. They
were established by Parliament specifically
to administer the LRA. Their
primary responsibility is to oversee the ongoing interpretation and application
of the LRA and the
development of labour relations policy and precedent.[41] Through their skills and
experience, judges of the Labour Court and the Labour Appeal Court accumulate
expertise which enables
them to resolve labour and employment disputes
speedily. Indeed judges of the Labour Court and the Labour Appeal Court are
appointed
to these courts based upon, amongst other qualifications, their
“knowledge, experience, and expertise in labour law.”[42] The appointment of women and
men with expertise in labour law to specialised labour courts is to ensure the
development of a
coherent labour and employment relations jurisprudence.
Moreover, the Labour Court is a superior court and has the authority,
inherent
powers and standing in relation to matters under its jurisdiction equal to that
of the High Court.

[106]The creation of a comprehensive framework of law governing labour
and employment relations in both the public and private sectors
must be
understood in the context of the constitutional right to fair labour practices
in section 23(1) of the Constitution.
This provision guarantees to everyone, a
right to fair labour practices. It envisages legislation that would give
effect to this
right. Indeed, one of the primary objectives of the LRA is to
give effect to the right to fair labour practices. Section 185
of the LRA
affirms the right of everyone not to be unfairly dismissed or subjected to
unfair labour practices.

[107]The LRA provides simple procedures for the resolution of labour
disputes through statutory conciliation, mediation and arbitration,
for which
the CCMA is established. It establishes the Labour Court and the Labour Appeal Court as superior courts, with exclusive
jurisdiction to decide matters
arising from it. Section 188 provides that a dismissal is unfair if the
employer fails to prove
that the dismissal was for a fair reason or that the
dismissal was effected in accordance with a fair procedure. Thus the LRA
protects employees covered by it against both substantively and procedurally
unfair dismissal. Item 8 of Schedule 8 of the LRA
deals with the manner of
dealing with an employee who is on probation. Item 9 of Schedule 8 of the LRA
sets out the guidelines
in cases of dismissal for poor work performance.

[108]A dispute about the procedural fairness of a dismissal must, like
all other disputes, be dealt with in terms of section 191. The
bargaining
council having jurisdiction or the CCMA must attempt to resolve the dispute
through conciliation.[43]
If the dispute remains unresolved for a period of 30 days and if, as in this
case, a dispute relates to the conduct of an employee,
the dispute must be
referred for arbitration.[44]
In certain instances a dispute may be referred to the Labour Court.[45] There is no appeal against
an award made by a commissioner of the CCMA. The only remedy available to a
party aggrieved by the
decision of a commissioner is to take the award on
review to the Labour Court. Arbitration awards may be reviewed by the Labour
Court on a specified ground.[46]
In addition, the Labour Court has the power to review the performance of any
function provided for in the LRA on any grounds
that are permissible in law.[47] Finally, section 158(1)(h)
empowers the Labour Court to “review any decision taken or any act performed by
the State in its
capacity as employer, on such grounds as are permissible in
law”.

[109]It is in this context and in the light of these primary objects of
the LRA that the provisions of section 157 must be understood
and construed.

[110]The objects of the LRA are not just textual aids to be employed
where the language is ambiguous. This is apparent from the interpretive
injunction in section 3 of the LRA which requires anyone applying the LRA to
give effect to its primary objects and the Constitution.
The primary objects
of the LRA must inform the interpretive process and the provisions of the LRA
must be read in the light of
its objects. Thus where a provision of the LRA is
capable of more than one plausible interpretation, one which advances the
objects
of the LRA and the other which does not, a court must prefer the one
which will effectuate the primary objects of the LRA. The
clear intention of
the legislature was to create specialised forums to deal with labour and
employment matters and for which the
LRA provides specific resolution
procedures.

[111]When enacting the LRA, Parliament did not merely lay down a
substantive rule of law to be enforced by any tribunal competent to apply
the
law. It went on to entrust the primary interpretation and application of its
rules to specific and specially constituted
tribunals and forums and prescribed
a particular procedure for resolving disputes arising under the LRA.
Parliament evidently
considered that centralised administration and
adjudication by specialised tribunals and forums was necessary to achieve
uniform
application of its substantive rules and to avoid incompatible and
conflicting decisions that are likely to arise from a multiplicity
of tribunals
and diversity of rules of substantive law.

[112]When a proposed interpretation of the jurisdiction of the Labour Court and the High Court threatens to interfere with the clearly
indicated policy of
the LRA to set up specialised tribunals and forums to deal with labour and
employment relations disputes, such
a construction ought not to be preferred.
Rather, the one that gives full effect to the policy and the objectives of the
LRA
must be preferred. The principle involved is that where Parliament in the
exercise of its legislative powers and in fulfilment
of its constitutional
obligation to give effect to a constitutional right, enacts the law, courts
must give full effect to that
law and its purpose. The provisions of the law
should not be construed in a manner that undermines its primary objectives.
The provisions of subsections (1) and (2) of section 157 must therefore be
construed purposively in a manner that gives full effect
to each without undermining
the purpose of each.

[113]The purpose of section 157(1) was to give effect to the declared
object of the LRA to establish specialist tribunals “with exclusive
jurisdiction to decide matters arising from [it]”. To this extent, it has
given exclusive jurisdiction to the Labour Court
and Labour Appeal Court to
deal with matters arising from the LRA.

[114]Section 157(2) was only included in the LRA in 1998. It must be
understood in its historical context. The LRA was enacted subsequent
to the
interim Constitution. In terms of the interim Constitution there were
limitations that were placed on the jurisdiction
of certain courts to consider
constitutional issues. Section 101(3) of the interim Constitution conferred
limited jurisdiction
on the High Court to consider constitutional issues which included
“any alleged violation of any fundamental right” and “any
dispute over the
constitutionality of any executive or administrative act”.[48] Section 103 dealt with
“other courts” which includes the Labour Court and did not expressly confer any
constitutional jurisdiction
on such courts.[49]

[115]The effect of section 157(2) is to confer limited constitutional
jurisdiction on the Labour Court in respect of matters involving
alleged or
threatened violations of the rights in the Bill of Rights. It did so in a
language similar to section 101(3) of the
interim Constitution with one notable
difference; the constitutional jurisdiction of the Labour Court is limited to
issues arising
out of employment and labour relations. The manifest purpose of
section 157(2) was therefore to confer constitutional jurisdiction
on the Labour Court. It did so in terms which were almost identical to the jurisdiction conferred
on the High Court.

[116]The provisions of the section 101(3) of the interim Constitution
have been repealed by the Constitution. In terms of section 169
of the
Constitution, a High Court may decide any constitutional matter except a matter
that is within the exclusive jurisdiction
of the Constitutional Court or “a
matter that is assigned by an Act of Parliament to another court of a status
similar to a High
Court.”[50]
It is clear from the provisions of section 169(a)(ii) of the Constitution that
a High Court has no jurisdiction to determine
a matter that is assigned by the
LRA to the Labour Court. Section 170 of the Constitution makes it plain that
the Labour Court
has constitutional jurisdiction in respect of matters assigned
to it by the LRA. It provides that “a court of a status lower
than a High
Court may not enquire into or rule on constitutionality of any legislation or
other conduct of the President.”
The Labour Court is a court which has a
status similar to that of a High Court. The scope of section 157(2) must be
determined
in the light of the objects of the LRA to which I have already
referred.

[117]What must be stressed is the point already made, namely, that one of
the primary objects of the LRA is to establish specialist courts
with exclusive
jurisdiction to decide matters arising from labour and employment relations.
It is perhaps worth repeating what
we said in National Education Health
& Allied Workers Union v University of Cape Town and Others (NEHAWU)[51] concerning the role of the Labour Appeal Court and the Labour Court. There we said:

“The LAC is a specialised court, which
functions in a specialised area of law. The LAC and the Labour Court were
established
by Parliament specifically to administer the LRA. They are charged
with the responsibility for overseeing the ongoing interpretation
and
application of the LRA and development of labour relations policy and
precedent. Through their skills and experience, Judges
of the LAC and the Labour Court accumulate the expertise which enables them to resolve labour disputes
speedily.”[52]

[118]The achievement of the objective to develop a coherent and evolving
jurisprudence in labour and employment relations, lies in the
ability of the
Labour Court to deal with all matters arising from labour and employment
relations, whether such matters arise from
the LRA or directly from the provisions
of the Bill of Rights. By extending the jurisdiction of the Labour Court to
disputes
concerning the alleged violation of any right entrenched in the Bill
of Rights, which arise from employment and labour relations,
section 157(2) has
brought within the reach of the Labour Court, employment and labour relations
disputes that arise directly from
the provisions of the Bill of Rights. The
power of the Labour Court to deal with such disputes is essential to its role
as a
specialist court that is charged with the responsibility to develop a
coherent and evolving employment and labour relations jurisprudence.
Section
157(2) enhances the ability of the Labour Court to perform such a role.

[119]The objective to establish a one-stop court for labour and
employment relations is apparent in other provisions of the LRA. Section
157(3) confers on the Labour Court jurisdiction to review arbitrations
conducted under the Arbitration Act, 1965[53]
“in respect of any dispute that may be referred to arbitration in terms of [the
LRA]”.[54]
The Labour Court has the power to review the performance of any function which
is provided for in the LRA;[55]
and to review any decision taken or any act performed by the State in its
capacity as an employer.[56]
All these provisions are designed to strengthen the power of the Labour Court to deal with disputes arising from labour and employment
relations.

[120]Viewed in this context, the primary purpose of section 157(2) was
not so much to confer jurisdiction on the High Court to deal with
labour and
employment relations disputes, but rather to empower the Labour Court to deal
with causes of action that are founded
on the provisions of the Bill of Rights
but which arise from employment and labour relations. The constitutional
authority of
the legislature to confer that power on the Labour Court is found
in section 169(a)(ii) of the Constitution. That provision authorises
Parliament to assign any constitutional matter “to another court of a status
similar to a High Court” and to deprive the High
Court of the jurisdiction in
respect of a matter assigned to another court.

[121]Given the manifest purpose of section 157(2) the use of the word
“concurrent” is unfortunate. Concurrent jurisdiction may well
give rise to
forum-shopping with all its unfortunate consequences. As the High Court
observed in Independent Municipal and Allied Trade Union v Northern Pretoria
Metropolitan Substructure and Others (IMATU):

“Concurrent jurisdiction may give rise to
‘forum shopping’. This is evident in the present case. For unlike the
applicant,
the aggrieved members have followed the route of
conciliation/arbitration and we have parallel cases about the same
subject-matter.
In addition concurrent jurisdiction may lead to conflicting
irresoluble decisions of the Labour Court and High Court on the same
issue.”[57]

[122]The legislature may well have achieved its objective to extend the
jurisdiction of the Labour Court to causes of action founded on
the provisions
of the Bill of Rights arising from employment and labour relations without using
the word “concurrent”. It
did so in relation to the power of the Labour Court to “review any decision taken or any act performed by the State in its capacity
as an employer”.[58]
The use of the word “concurrent” has regrettably led some courts to express the
view that given the fact that the right to
fair labour practices is a right
guaranteed in section 23(1) of the Constitution, there will never be a
situation where the Labour
Court will have exclusive jurisdiction even in
matters concerning unfair labour practices.[59]
This view simply illustrates the danger in giving section 157(2) a wider
meaning than its context and the objects of the LRA
require. As I see it, the
problem is one of reconciling the provisions of subsections (1) and (2) of
section 157 and harmonising
them with the primary objects of the LRA.

[123]While section 157(2) remains on the statute book, it must be
construed in the light of the primary objectives of the LRA. The first
is to
establish a comprehensive framework of law governing the labour and employment
relations between employers and employees
in all sectors. The other is the
objective to establish the Labour Court and Labour Appeal Court as superior
courts, with exclusive
jurisdiction to decide matters arising from the LRA. In
my view the only way to reconcile the provisions of section 157(2) and
harmonise them with those of section 157(1) and the primary objects of the LRA,
is to give section 157(2) a narrow meaning. The
application of section 157(2)
must be confined to those instances, if any, where a party relies directly on
the provisions of the
Bill of Rights. This of course is subject to the
constitutional principle that we have recently reinstated, namely, that “where
legislation is enacted to give effect to a constitutional right, a litigant may
not bypass that legislation and rely directly on
the Constitution without
challenging that legislation as falling short of the constitutional standard.”[60]

[124]Where, as here, an employee alleges non-compliance with provisions
of the LRA, the employee must seek the remedy in the LRA. The
employee cannot,
as the applicant seeks to do, avoid the dispute resolution mechanisms provided
for in the LRA by alleging a violation
of a constitutional right in the Bill of
Rights. It could not have been the intention of the legislature to allow an
employee
to raise what is essentially a labour dispute under the LRA as a
constitutional issue under the provisions of section 157(2).
To hold otherwise
would frustrate the primary objects of the LRA and permit an astute litigant to
bypass the dispute resolution
provisions of the LRA. This would inevitably
give rise to forum shopping simply because it is convenient to do so or as the
applicant
alleges, convenient in this case “for practical considerations”.
What is in essence a labour dispute as envisaged in the LRA
should not be
labelled a violation of a constitutional right in the Bill of Rights simply
because the issues raised could also
support a conclusion that the conduct of
the employer amounts to a violation of a right entrenched in the Constitution.

[125]The question therefore is whether a dispute about a failure to
comply with the mandatory provisions of item 8 and item 9 of Schedule
8 to the
LRA is a dispute which falls to be resolved under the dispute resolution
provisions of the LRA. In the light of the
principles to which I have
referred, the answer is clear; a dispute concerning the alleged non-compliance
with the provisions of
the LRA is a matter which under the LRA, must be
determined exclusively by the Labour Court. This result cannot be avoided by
alleging, as the applicant does, that the conduct of Transnet violates the
provisions of the LRA in question and violates a constitutional
right to just
administrative action in section 33 of the Constitution and is therefore
reviewable under PAJA.

[126]It now remains to consider the other troublesome issue, namely,
whether the applicant has more than one cause of action; one flowing
from the
LRA and the other flowing from the constitutional right to just administrative
action. It is to that issue that I now
turn.

Does the applicant have more than
one cause of action?

[127]One of the unintended consequences of the provisions of section
157(2) has been that employees in the public sector consider themselves
as
having more than one cause of action as the applicant contended. Public sector
employees normally allege that when a State
employer dismisses them, such
conduct amounts to the exercise of public power and therefore constitutes
administrative action.
Much store is placed by the decision in Administrator,
Transvaal, and Others v Zenzile and Others[61] and its progeny, which held
that the dismissal of a public sector employee is an exercise of public power.
Public sector employees
contend therefore that this implicates the
constitutional right to just administrative action in section 33 of the
Constitution.
This, they argue, entitles them to approach the High Court under
section 157(2) of the LRA. But do they have more than one cause
of action?

[128]The argument that the decision by Transnet to dismiss the applicant
gave rise to two causes of action is premised on the assumption
that the
dismissal of a public sector employee constitutes administrative action.
Judicial opinion on this issue is not harmonious.
The debate reduces itself to
how powers exercised by a public entity in its employment relations ought to be
characterised.
One school of thought holds the view that all employment
relationships should be governed by labour law, including the right to
fair
labour practices in section 23 of the Constitution to the exclusion of
administrative law, PAJA and the right to just administrative
action in section
33. This school of thought has been adopted in a number of cases.[62] The other school of thought
holds the view that the exercise of public power inevitably attracts both
administrative law and
labour law with the result that public sector employees
have remedies under both branches of law. This approach too has been adopted
in several cases.[63]

[129]What ultimately divides these schools of thought is a disagreement
over whether the decision of a public entity to dismiss an employee
should be
characterised as the exercise of public power. The views expressed by members
of the Supreme Court of Appeal in this
case reflect this disagreement. It will
be convenient, first, to consider these two schools of thought; then to
identify the
principles laid down in President of the Republic of South
Africa and Others v South African Rugby Football Union and Others (SARFU)[64] on what constitutes
administrative action; and ultimately, to apply those principles – retooled
insofar as may be necessary,
to the facts of the case now under consideration.

[130]Mthiyane JA held that the nature of the conduct involved in this
case is the termination of a contract of employment which is based
on a
contract. The conduct of Transnet in terminating the employment contract did
not therefore involve the exercise of public
power or performance of a public
function in terms of some legislation as required by PAJA.[65] He reasoned that the mere
fact that Transnet is an organ of State “does not impart a public law character
to its employment
contract with the applicant.”[66] Its power to dismiss is not
found in legislation but in the employment contract between it and the
applicant. When Transnet
dismissed the applicant it “did not act as a public
authority but simply in its capacity as employer.”[67] He further reasoned that
“ordinarily” the employment contract has no public element and is not governed
by administrative
law. He held that the applicant was protected by the
provisions of the LRA.[68]
He concluded that the conduct of Transnet in dismissing the applicant did not
therefore constitute administrative action as defined
in PAJA nor did it
violate the applicant’s rights under section 33 of the Constitution.[69]

[131]Cameron JA held that the decision of a State organ to dismiss an
employee constitutes administrative action.[70]
He relied upon Zenzile[71]
which held that a public sector employer is a public authority whose decision
to dismiss involves the exercise of public power.[72] That the applicant’s
contract of employment or Transnet’s authority to employ the applicant “did not
derive from a particular,
discernable, statutory provision” is of no
significance, Cameron JA reasoned.[73]
What matters, he said, is that Transnet is a public entity created by
legislation and operating under statutory authority.
Cameron JA concluded that
when Transnet dismissed the applicant, its action trenched on two
constitutional rights, namely, her
right to fair labour practices and her right
to just administrative action.[74]

[132]Cameron JA therefore upheld the applicant’s contention that she had
two causes of action as a result of her dismissal; one under
the LRA, the other
under the Constitution and PAJA. In upholding this contention he reasoned that
the fact that an employee has
remedies under the LRA does not preclude the
employee from approaching the High Court for relief.[75] He expressed the view that
he could not find any doctrine of constitutional law which confines a
beneficiary of more than one
constitutional right to only one remedy.[76] Nor, he reasoned, could he
find any “intention to prefer one legislative embodiment of a protected right
over another; nor
any preferent entrenchment of rights or of the legislation
springing from them.”[77]

[133]It is necessary to refer to two recent decisions of the Labour Court and the High Court which reach different conclusions on this
issue. The first
is SA Police Union and Another v National Commissioner of SA Police Services
and Another (SA Police Union), a decision of the Labour Court.[78] In this case the primary
issue was whether the decision of the Commissioner to introduce the adapted
eight hour shift constituted
administrative action. The Court concluded that
the conduct of the Commissioner in question did not constitute administrative
action.[79]
The reasoning of the Labour Court rests on three main propositions. The first
is that the Constitution draws a distinction
between administrative action and
labour relations. The Court reasoned that these are “two distinct species of
juridical acts
[to which the Constitution] subjects . . . different forms of
regulation, review and enforcement.”[80]
The second is that “[t]here is nothing inherently public about setting the
working hours of police officers”.[81]
Employment relations, the Court said, “are conducted internally in service of
the immediate objectives of the organ of state
and are premised upon a
contractual relationship of trust and good faith.”[82]

[134]Lastly, the Court held that there was “no logical, legitimate or
justifiable basis upon which to categorise all employment conduct
in the public
sector as administrative action”.[83]
But Zenzile, which held that the dismissal of workers by a public body
does not fall beyond the reach of administrative law and that the decision
to
dismiss a public sector employee involved the exercise of public power, stood
in its way. The Court reasoned that because
the LRA has been extended to
virtually all employees, including those in the public sector, it is no longer
necessary to apply
the principles of administrative law to the field of
employment relations. It concluded that cases such as Zenzile which
extended labour rights to public sector employees “have lost their force
following the codification of our administrative
law and labour law, and the
extension of full labour rights to public sector employees by the LRA.”[84]

[135]This decision must be contrasted with the High Court decision in Police
and Prisons Civil Rights Union and Others v Minister of Correctional Services
and Others (POPCRU),[85]
which was handed down by the Eastern Cape High Court after the Labour Court
decision in SA Police Union. This case concerned an application to
review the decision of the Department of Correctional Services to dismiss some
of its
employees. The Department contended that the decision to dismiss its
employees did not constitute administrative action and consequently
was not
reviewable under the provisions of PAJA. The Court held that the decision in
question constituted the exercise of public
power and thus amounted to
administrative action.[86]
Factors which influenced the Court in concluding that the power involved was
public, included the statutory basis of the power
to employ and dismiss
correctional officers, the subservience of the officials to the Constitution
generally, and the public character
of the Department.[87]

[136]The Court rejected the argument that it is neither necessary nor
desirable for one act to attract the protection of both labour law
and
administrative law. It reasoned firstly that the fundamental right to fair
labour practices does not trump every other right.[88] The right to administrative
justice and the right to fair labour practices provide employees with rights which
“are complimentary
and cumulative, not destructive of each other simply because
they are different.”[89]
The second proposition is that there is nothing incongruous about individuals
having more legal protection rather than less,
or more than one fundamental
right applying to one act, or more than one branch of law applying to the same
set of facts.[90]
The third proposition is that section 157(2) of the LRA envisages that certain
employment-related acts will also be administrative
acts when vesting jurisdiction
in the Labour Court concurrent with the jurisdiction of the High Court.[91]

[137]In this case the Chief Justice holds that the High Court had
jurisdiction because the applicant alleged a violation of the constitutional
right to administrative action, a right in the Bill of Rights. However, he
finds that the decision to terminate the applicant’s
employment contract did
not constitute administrative action under PAJA for two reasons. First, the
dismissal of the applicant
did not take place in terms of any statutory
authority, but rather in terms of the contract of employment.[92] Second, the dismissal did
not constitute the exercise of public power.[93]
In this regard he finds that the source of Transnet’s power to dismiss is
contractual and this “point[s] strongly in the
direction that the power is not
a public one.”[94]

[138]I am unable to agree with the view that in dismissing the applicant
Transnet did not exercise public power. In my view, what makes
the power in
question a public power is the fact that it has been vested in a public
functionary, who is required to exercise the
power in the public interest.
When a public official performs a function in relation to his or her duties,
the public official
exercises public power. I agree with Cameron JA that
Transnet is a creature of statute. It is a public entity created by the
statute and it operates under statutory authority. As a public authority, its
decision to dismiss necessarily involves the exercise
of public power and,
“[t]hat power is always sourced in statutory provision, whether general or
specific, and, behind it, in
the Constitution.”[95] Indeed, in Hoffmann v
South African Airways,[96]
this Court held that “Transnet is a statutory body, under the control of the
State, which has public powers and performs public
functions in the public
interest.”[97]

[139]However, the fact that the conduct of Transnet, in terminating the
applicant’s employment contract, involves the exercise of public
power is not
decisive of the question whether the exercise of the power in question
constitutes administrative action. The question
whether particular conduct
constitutes administrative action must be determined by reference to section 33
of the Constitution.
Section 33 of the Constitution confines its operation to
“administrative action”, as does PAJA. Therefore to determine whether
conduct
is subject to review under section 33 and thus under PAJA, the threshold
question is whether the conduct under consideration
constitutes administrative
action. PAJA only comes into the picture once it is determined that the
conduct in question constitutes
administrative action under section 33. The
appropriate starting point is to determine whether the conduct in question
constitutes
administrative action within the meaning of section 33 of the Constitution.[98] The question therefore is
whether the conduct of Transnet in terminating the applicant’s contract of
employment constitutes
administrative action under section 33.

[140]In SARFU,[99]
this Court emphasised that not all conduct of State functionaries entrusted
with public authority will constitute administrative
action under section 33.
The Court illustrated this by drawing a distinction between the constitutional
responsibility of cabinet
ministers to ensure the implementation of legislation
and their responsibility to develop policy and to initiate legislation.
It
pointed out that the former constitutes administrative action, while the latter
does not. It held that “the test for determining
whether conduct constitutes
‘administrative action’ is not the question whether the action concerned is
performed by a member
of the executive arm of government.”[100] But what matters is the
function that is performed. The question is whether the task that is performed
is itself administrative
action or not.[101]

[141]Against this background the Court concluded:

“Determining whether an action should be
characterised as the implementation of legislation or the formulation of policy
may be
difficult. It will, as we have said above, depend primarily upon the
nature of the power. A series of considerations may be
relevant to deciding on
which side of the line a particular action falls. The source of the power,
though not necessarily decisive,
is a relevant factor. So, too, is the nature
of the power, its subject-matter, whether it involves the exercise of a public
duty
and how closely it is related on the one hand to policy matters, which are
not administrative, and on the other to the implementation
of legislation,
which is. While the subject-matter of a power is not relevant to determine
whether constitutional review is appropriate,
it is relevant to determine
whether the exercise of the power constitutes administrative action for the
purposes of section 33.
Difficult boundaries may have to be drawn in deciding
what should and what should not be characterised as administrative action
for
the purposes of section 33. These will need to be drawn carefully in the light
of the provisions of the Constitution and
the overall constitutional purpose of
an efficient, equitable and ethical public administration. This can best be
done on a case
by case basis.”[102]
(Footnotes omitted.)

[142]The subject matter of the power involved here is the termination of
a contract of employment for poor work performance. The source
of the power is
the employment contract between the applicant and Transnet. The nature of the
power involved here is therefore
contractual. The fact that Transnet is a
creature of statute does not detract from the fact that in terminating the
applicant’s
contract of employment, it was exercising its contractual power. It
does not involve the implementation of legislation which constitutes
administrative action. The conduct of Transnet in terminating the employment
contract does not, in my view, constitute administration.
It is more concerned
with labour and employment relations. The mere fact that Transnet is an organ
of State which exercises public
power does not transform its conduct in
terminating the applicant’s employment contract into administrative action.
Section
33 is not concerned with every act of administration performed by an
organ of state. It follows therefore that the conduct of
Transnet did not
constitute administrative action under section 33.

[143]Support for the view that the termination of the employment of a
public sector employee does not constitute administrative action
under section
33 can be found in the structure of our Constitution. The Constitution draws a
clear distinction between administrative
action on the one hand and employment
and labour relations on the other. It recognises that employment and labour
relations and
administrative action are two different areas of laws. It is
true they may share some characteristics. Administrative law falls
exclusively
in the category of public law while labour law has elements of administrative
law, procedural law, private law and
commercial law.[103]

[144]The Constitution contemplates that these two areas will be subjected
to different forms of regulation, review and enforcement.
It deals with labour
and employment relations separately. This is dealt with in section 23 under
the heading “Labour Relations”.
In particular, section 23(1) guarantees to
“[e]veryone . . . the right to fair labour practices.” The Constitution
contemplates
that labour relations will be regulated through collective
bargaining and adjudication of unfair labour practices. To this extent,
section 23 of the Constitution guarantees the right of every employee and every
employer to form and join a trade union or an employers’
organisation, as the
case may be.

[145]Nor is there anything, either in the language of section 23 or the
context in which that section occurs, to support the proposition
that the
resolution of labour and employment disputes in the public sector should be
regulated differently from disputes in the
private sector. On the contrary,
section 23 contemplates that employees regardless of the sector in which they
are employed will
be governed by it. The principle underlying section 23 is
that the resolution of employment disputes in the public sector will
be
resolved through the same mechanisms and in accordance with the same values as
in the private sector, namely, through collective
bargaining and the
adjudication of unfair labour practice as opposed to judicial review of administrative
action.[104]
It is apparent from the Public Administration provisions of the Constitution
that employment relations in the public service
are governed by fair employment
practices.

[146]Section 195 which sets out the basic values and principles governing
public administration, includes as part of those values and
principles,
“employment and personnel management practices based on . . . fairness”.[105] These provisions contemplate
fair employment practices. In addition, one of the powers and functions of the
Public Service
Commission is “to give directions aimed at ensuring that
personnel procedures relating to . . . dismissals comply with [fair employment
practices]”.[106]
This flows from the requirement that dismissals in the public service must
comply with the values set out in section 195(1).
These provisions echo the
right to fair labour practices in section 23(1). And finally, section 197(2)
provides that the terms
and conditions of employment in the Public Service must
be regulated by national legislation.

[147]These provisions must be understood in the light of section 23 of
the Constitution which deals with labour relations, and in particular,
section
23(1) which guarantees to everyone the right to fair labour practices. Section
197(2) does not detract from this. It
must be read as complementing and
supplementing section 23 in affording employees protection. Indeed, the LRA,
which was enacted
to give effect to section 23 of the Constitution, and the
Public Service Act, 1994,[107]
which was enacted to give effect to section 197(2) of the Constitution,
complement and supplement one another. By its own terms,
the LRA governs all
employees, including those in the public sector except those specifically
excluded. For its part, the Public
Service Act which governs, among other
things, the “terms and conditions of employment” expressly provides that the
power to
discharge an officer or employee “shall be exercised with due
observance of the applicable provisions of the Labour Relations Act, 1995”.[108]

[148]As pointed out earlier, the line of cases which hold the power to
dismiss amounts to administrative action rely on Zenzile. This case and
its progeny must be understood in the light of our history. Historically,
recourse was had to administrative
law in order to protect employees who did
not enjoy the protection that private sector employees enjoyed. Since the
advent of
the new constitutional order, all that has changed. Section 23 of
the Constitution guarantees to every employee, including public
sector
employees, the right to fair labour practices. The LRA, the Employment Equity
Act, 1998,[109]
and the Basic Conditions of Employment Act, 1997,[110] have codified labour and
employment rights. The purpose of the LRA and the Basic Conditions of
Employment Actclass=MsoFootnoteReference>style='font-size:13.0pt;font-family:"Times New Roman"'>[111]
is to give effect to and regulate the fundamental right to fair labour
practices conferred by section 23 of the Constitution. Both the LRA and the
Basic Conditions of Employment Act, were enacted to give effect to section 23,
now govern the public sector employees, except those who are specifically
excluded from its provisions. Labour and employment
rights such as the right
to a fair hearing, substantive fairness and remedies for non-compliance are now
codified in the LRA.[112]
It is no longer necessary therefore to treat public sector employees
differently and subject them to the protection of administrative
law.

[149]In my judgement labour and employment relations are dealt with
comprehensively in section 23 of the Constitution. Section 33 of the
Constitution does not deal with labour and employment relations. There is no
longer
a distinction between private and public sector employees under our
Constitution. The starting point under our Constitution is
that all workers
should be treated equally and any deviation from this principle should be
justified. There is no reason in principle
why public sector employees who
fall within the ambit of the LRA should be treated differently from private
sector employees and
be given more rights than private sector employees.
Therefore, I am unable to agree with the view that a public sector employee,
who challenges the manner in which a disciplinary hearing that resulted in his
or her dismissal, has two causes of action, one
flowing from the LRA and
another flowing from the Constitution and PAJA.

[150]I conclude that the decision by Transnet to terminate the
applicant’s contract of employment did not constitute administrative
action
under section 33 of the Constitution. This conclusion renders it unnecessary
to decide whether PAJA applies.

[151]For all these reasons, I hold that the dispute between the applicant
and Transnet falls within the exclusive jurisdiction of the
Labour Court. It
follows therefore that the High Court did not have jurisdiction in respect of
the applicant’s claim.

[152]This is not however a matter in which costs should be ordered. The
applicant has urged an important question which has been plaguing
labour and
employment relations since the inception of the labour courts. By coming here
she has helped to resolve this problem.

[153]One final observation must be made in this case. The applicant
approached the High Court because she was advised to do so. The
state of the
law was uncertain at the time. Her approach to the High Court is therefore
understandable. Should she decide to
pursue her claim in the right forum, one
can only hope that the circumstances that led her to abandon the CCMA process
and the
length of time it has taken to resolve the important legal question she
raised, will be taken into consideration in considering
the reasonableness or
otherwise of her delay in approaching the appropriate forum.

[154]I have had the pleasure of reading the judgment of Skweyiya J. I
concur in the outcome he reaches but unfortunately cannot agree
with his
reasoning and conclusion regarding the issue of jurisdiction. In my view, the
primary question for this Court to consider
is whether the applicant’s
dismissal constitutes administrative action in terms of the Promotion of
Administrative Justice Act (PAJA).[1]
I shall come to this question later in my judgment. However, because Skweyiya
J deals with the case on the basis of the jurisdiction
alone; and in so doing
seeks to distinguish an earlier unanimous decision of this Court, I consider it
necessary to set out my
reasoning in respect of the jurisdiction question as
well.

The correct approach to
determining jurisdiction

[155]It seems to me axiomatic that the substantive merits of a claim
cannot determine whether a court has jurisdiction to hear it. That
much was
recognised by this Court in Fraser v ABSA Bank Ltd (National Director of
Public Prosecutions as Amicus Curiae).[2] Van der Westhuizen J, when
deciding on what constitutes a constitutional issue, held as follows:

“An issue does not become a constitutional
matter merely because an applicant calls it one. The other side of the coin
is, however,
that an applicant could raise a constitutional matter, even though
the argument advanced as to why an issue is a constitutional
matter, or what
the constitutional implications of the issue are, may be flawed. The
acknowledgment by this Court that an issue
is a constitutional matter,
furthermore, does not have to result in a finding on the merits of the matter
in favour of the applicant
who raised it.”[3]

The corollary of the last sentence
must be that the mere fact that an argument must eventually fail cannot deprive
a court of jurisdiction.[4]

[156]The analogy to Fraser is appropriate in the present context
because the jurisdiction of the High Court in labour matters is also defined
along somewhat
substantive lines. Sections 157(1) and (2) of the Labour
Relations Act (LRA)[5]
read together make it clear that the High Court retains its existing
jurisdiction except for those “matters that elsewhere in
terms of this Act or
in terms of any other law are to be determined by the Labour Court.” So, while
the question for this Court’s
jurisdiction is whether a case raises a
“constitutional matter”, the question in this case is whether a claim has been
assigned
by law to the Labour Court. We must therefore ask whether the claim
before us is a claim that has been assigned to the Labour
Court.

The nature of the applicant’s
claim

[157]According to Skweyiya J, “Ms Chirwa’s
complaint is that Mr Smith ‘failed to comply with the mandatory provisions of
items 8 and 9 of Schedule 8 to the
LRA’.”[6]
I take a different view of the applicant’s claim. While the quoted sentence
does indeed appear in the applicant’s submissions,
it forms only a small part
of her argument. The bulk of
her submissions were devoted to arguments based squarely on PAJA. Firstly, she
contends that her dismissal is administrative
action as understood by PAJA. In
addition, her substantive complaints were that the alleged administrative action
contravened:
(a) section 3(2)(b) of PAJA[7]
for failing to provide adequate notice; (b) section 6(2)(a)(iii) of PAJA[8] because the administrator was
biased; and (c) section 3(3)(a) of PAJA[9]
because she was prevented from obtaining assistance or representation. The
reference to items 8 and 9[10]
is used solely to bolster a further argument that her dismissal also violated sections
6(2)(b)[11]
and 6(2)(f)(i)[12]
of PAJA. These sections provide for the review of actions that are not
permitted by the empowering provision or contravene another
law.

[158]While that argument alone might have been construed as a disguised
reliance on the LRA, in the broader context of her argument, I
do not believe
that is a fair or correct characterisation. It should be added that it was not
a characterisation urged upon us
by the applicant’s counsel in argument; nor
one adopted in any of the three judgments in the Supreme Court of Appeal, nor
in
the High Court judgments. In my view, it is incorrect.

[159]Most of my disagreement with the judgment of Skweyiya J flows from
this mischaracterisation. It seems clear to me that, evaluated
as a whole, the
applicant’s complaint is that her dismissal should be evaluated in terms of
PAJA, not the LRA. Whatever we
think of the wisdom of her election to avoid
the specialised provisions of the LRA, we must evaluate the claim as it was
presented
to us. I should add here that her claim constitutes a constitutional
matter as it concerns her right to administrative justice
under section 33 of
the Constitution, as given effect to by PAJA.[13]

Has the applicant’s claim been
assigned to the Labour Court?

[160]The next question must be whether the claim as described is a matter
that has been assigned to the Labour Court. Sections 157(1)
and (2) of the LRA
read:

“(1) Subject to the Constitution and section 173, and except
where this Act provides otherwise, the Labour Court has
exclusive jurisdiction
in respect of all matters that elsewhere in terms of this Act or in terms of
any other law are to be determined
by the Labour Court.

(2) The Labour Court has concurrent jurisdiction with the
High Court in respect of any alleged or threatened violation
of any fundamental
right entrenched in Chapter 2 of the Constitution of the Republic of South Africa, 1996, and arising from—

(a) employment
and from labour relations;

(b) any dispute over the constitutionality of any executive
or administrative act or conduct, or any threatened executive
or administrative
act or conduct, by the State in its capacity as an employer; and

(c) the application of any law for the administration of
which the Minister is responsible.”

[161]This section has been the subject of considerable debate in the High
Court. That debate can be roughly divided into two schools
of thought, both in
terms of outcome and reasoning. The one approach adopts a purposive reading of
the section that claims to
give effect to the purpose of the LRA to have labour
disputes adjudicated solely within the structures it created.[14]
This is typified by the following passage of Van Zyl J in Mgijima v Eastern Cape Appropriate Technology Unit and Another:

“I am of the view that for purposes of s
157(2) of the Act the substance of the dispute between the parties should in
every case
be determined. What is in essence a labour dispute as envisaged by the
Act should not be labelled a constitutional dispute simply
by reason of the
fact that the facts thereof and the issues raised could also support a
conclusion that the conduct of the employer
complained of amounts to a
violation of entrenched rights in the Constitution and should be declared as
such. In every case it
should rather be determined if the facts of the case
giving rise to the dispute and the issues between the parties are to be
characterised
a ‘matter’ provided for in the Act, and if that ‘matter’ is in
terms of s 157(1) to be determined by the Labour Court, the
High Court is
precluded from exercising jurisdiction.”[15]

It is also the approach adopted by
Conradie JA in the Supreme Court of Appeal.[16]

[162]A different school of thought adopts what has been described as a
more literal approach to the section.[17]
It is of the opinion that only those matters explicitly assigned to the Labour Court by the LRA are excluded from the High Court’s
jurisdiction.[18]
This judicial view relies primarily on what it regards to be the plain meaning
of the section. But their interpretation is
also buttressed by more
substantive concerns. As Jafta J explained in Mbayeka and Another v MEC for
Welfare, Eastern Cape:

“[T]o hold that special dispute resolution
procedures cannot be side-stepped by reliance on the breach of the rights to
fair labour
practices, just administrative action, the right to dignity or the
right to equality in a labour matter constitutes a down-grading
of such
constitutional rights to the level of ordinary statutory rights as the direct
consequence thereof is that the Labour Court
has exclusive jurisdiction over
labour disputes wherein such rights are violated within the context of labour
matters. The fact
that these rights might have been given effect to in
ordinary statutory legislation does not change their status at all – they
remain constitutionally entrenched rights enforceable in the High Courts as
well. To hold otherwise would lead to a serious anomalous
situation and the
effect thereof would deeply emasculate the constitutional jurisdiction of the
High Courts.”[19]

This approach in essence is
reflected in the judgments of Mthiyane and Cameron JJA in the Supreme Court of
Appeal.[20]

[163]Difficult and interesting as this debate is, it has in my view been
decided by this Court’s judgment in Fredericks and Others v MEC for
Education and Training, Eastern Cape, and Others.[21] The applicants in that
matter challenged a refusal to accept their application for voluntary
retrenchment as violating their
rights to equality and administrative justice.
O’Regan J, writing for a unanimous Court, endorsed the latter approach. She
held that section 157(1) had to be interpreted in light of section 169 of the
Constitution.[22]
That section permits constitutional matters to be assigned to courts other than
the High Court, but they must be courts of equal
status. O’Regan J held that
the Commission for Conciliation, Mediation and Arbitration (CCMA) is not a
court of equal status
and that the review of CCMA decisions is not a substitute
for considering a matter afresh.[23]
Section 157(1) of the LRA must, she concluded, insofar as it concerns
constitutional matters, be read to refer only to matters
assigned for initial
consideration by the Labour Court.[24]

[164]This Court also found that:

“It is quite clear that the overall scheme
of the Labour Relations Act does not confer a general jurisdiction on the Labour Court to deal with all disputes arising from employment. . . . As there is no general
jurisdiction afforded to the Labour Court in employment matters, the
jurisdiction of the High Court is not ousted by s 157(1) simply because a
dispute is one that falls within the overall sphere of employment relations.”[25]

The Court concluded that, absent a
specific provision conferring jurisdiction of a constitutional matter on the Labour Court, the
High Court enjoyed concurrent jurisdiction to decide constitutional
matters, including administrative action claims.[26]

[165]After Fredericks, the debate is not whether a claim is in
“essence” a labour matter or a matter that the general scheme of the LRA
intended
be addressed by the Labour Court. The much more limited question is
whether the LRA contains a provision referring a particular
constitutional
matter to the jurisdiction of the Labour Court. I should add, therefore, that
I do not find it possible to distinguish
Fredericks from the
case at hand narrowly as Skweyiya J does. The distinction he finds rests on
his characterisation of the claim made
by Ms Chirwa as, in essence, a claim
under the LRA.[27]
For the reasons given above, I disagree. It follows therefore that I disagree
also with his attempt to distinguish Fredericks.

[166]In this case, the only provision that might be understood to confer
a particular jurisdiction upon the Labour Court so as to render
its
jurisdiction exclusive within the terms of section 157(1) of the LRA is section
191(5) of the LRA that gives the Labour Court limited scope to address questions
of unfair dismissal,[28]
but this case does not fall within its terms. There are two reasons for this
conclusion.

[167]Firstly, as I stressed earlier, the applicant’s claim is not based
on the LRA or notions of “unfair dismissal”, but on PAJA.
But, is there not an
overlap between the two? Indeed there is. How great the extent of overlap is
not a matter for decision
now. However, in regard to the question of
jurisdiction, that the understanding of “fairness” in the two legislative
schemes
may nearly always overlap in relation to employment law is, as the
Supreme Court of Appeal has stressed,[29]
irrelevant. This approach is the same as that considered and approved by this
Court in Frederickswhere an administrative action claim that
might potentially have been brought in terms of the LRA was held to fall
properly in the
concurrent jurisdiction of the High Court and the Labour Court.

[168]The applicant’s claim cannot, therefore,
baldly be characterised as a claim for “unfair dismissal” as understood in the
LRA.
Instead the claim must be approached as it was pleaded (and understood by
both the Supreme Court of Appeal and the High Court).
The claim concerns
whether an action is an “administrative act . . . by the State in its capacity
as an employer”, and if so,
whether that act should be set aside. This is
exactly what section 157(2)(b) of the LRA places in the concurrent jurisdiction
of both the High Court and the Labour Court.

[169]I must stress again that this finding does not depend on the
dismissal qualifying as “administrative action” in terms of PAJA.
The
determination of whether the dismissal does constitute administrative action is
part of the merits of the claim, not a jurisdictional
requirement.[30] The finding, however, rests
on the case as pleaded by Ms Chirwa. She formulated her case on the basis of
PAJA, and a court
must assess its jurisdiction in the light of the pleadings.
To hold otherwise would mean that the correctness of an assertion
determines
jurisdiction, a proposition that this Court has rejected.[31]It
would also have the absurd practical result that whether or not the High Court
has jurisdiction will depend on the answer to
a question that the Court could
only consider if it had that jurisdiction in the first place. Such a result is
obviously untenable.

[170]The second reason why this matter cannot fall under section 157(1)
concerns the first part of the reasoning in Fredericksthat I
described above.[32]Fredericksheld that section 169 of the Constitution requires
that the LRA be interpreted so as not to exclude the jurisdiction of the High
Court in constitutional matters that are referred to bodies that are not of
similar status. The present matter is just such a
case. Section 191(5)(a)(i)
requires disputes about unfair dismissals for reason of conduct or capacity,
which after 30 days have
not been resolved by conciliation, to be decided by
arbitration by a council or the CCMA, not by the Labour Court. While it is
in
the Director’s discretion to refer such a matter to the Labour Court after
considering a number of factors,[33]
there is no guarantee that she or he will do so. It therefore follows, under
the LRA, that in most cases unfair dismissal claims
will not be decided at
first instance by the Labour Court, but by the CCMA. Ms Chirwa was dismissed
for reasons of conduct and
capacity. Her claim falls to be adjudicated at
first instance by the CCMA. Exclusive jurisdiction to determine the claim
cannot,
therefore, be conferred upon the Labour Court. The High Court must,
therefore, have had jurisdiction to consider this case.

Policy concerns

[171]The judgments of Skweyiya and Ngcobo JJ raise a number of important
policy considerations that, in their view, point in favour of
a finding that
the Labour Court must enjoy exclusive jurisdiction. These can briefly be
described as follows: (i) specialised
tribunals should address specialised
issues; (ii) there is no reason to afford public
employees greater protection than private employees; (iii) we should not permit
litigants
to forum-shop; and (iv) there is a danger of legal incoherence,
uncertainty or possible unfairness to individual litigants flowing
from
allowing two different sets of courts to decide substantially the same sets of
facts on different legal grounds (LRA – unfair
dismissal; PAJA – procedural
unfairness). I address each in turn.

[172]It is undoubtedly advantageous for specialised issues to be decided
by specialist tribunals. As Skweyiya J notes, this principle
has been endorsed
both by this Court[34] and other courts.[35]

[173]However, that principle does not seem entirely applicable in the
present context. As I have been at pains to note, there is a difference
between a claim that a dismissal is unfair and a claim that administrative
action is unfair. The claims may refer to the same
facts and raise similar
substantive concerns, but they are not identical; they serve different purposes
and operate in different
ways. The applicant is not asking a “non-labour”
court to decide a purely “labour issue”; instead, she is asking a High
Court to
decide an administrative law issue. The mere fact that her claims arose from
the employment context cannot rob them
of their administrative nature. Section
157(2)(b) of the LRA makes it clear that it was the legislature’s intention for
this
to be the case.

[174]While we may question that intention and may have preferred a
legislative scheme that more neatly divided responsibilities between
the
different courts, that is not the path the legislature has chosen. We must be
careful as a court not to substitute our preferred
policy choices for those of
the legislature. The legislature is the democratically elected body entrusted
with legislative powers
and this Court must respect the legislation it enacts,
as long as the legislation does not offend the Constitution. The effect
of the
approach of Skweyiya J is to adopt an interpretation of sections 157(1) and (2)
of the LRA inconsistent with the previous
jurisprudence of this Court and
inconsistent with the clear language of the provisions. It may well be that it
would be desirable
for the legislature to reconsider the division of labour it
has drawn between the Labour Court and the High Court in section 157 of the
Labour Relations Act, as the Labour Appeal Court has suggested,[36] but it is not for this Court
to adopt an interpretation of section 157 at odds with the language of the
section to achieve such a purpose.

[175]There is an important principle at play here. Both PAJA and the LRA
protect important constitutional rights and we should not presume
that one
should be protected before another or presume to determine that the “essence”
of a claim engages one right more than
another. A litigant is entitled to the
full protection of both rights, even when they seem to cover the same ground.
I agree
with Cameron JA that, while it may be possible for the legislature to
prefer one right over another, it must do so much more explicitly
than it has
in the LRA and PAJA.[37]
Cameron JA concluded:

“We must end where we began: with the
Constitution. I can find in it no suggestion that, where more than one right
may be in
issue, its beneficiaries should be confined to a single legislatively
created scheme of rights. I can find in it no intention
to prefer one
legislative embodiment of a protected right over another; nor any preferent
entrenchment of rights or of the legislation
springing from them.”[38]
(Footnote omitted.)

The implication is that there is no
constitutional reason to prefer adjudication of a claim that may simultaneously
constitute both
a dismissal and administrative action, under the LRA rather
than under PAJA. I should add that the legislature could resolve any
potential
problems of duplication by conferring sole jurisdiction to deal with any
disputes concerning administrative action under
PAJA arising out of employment
upon the Labour Court. So far the legislature has not chosen this route.

[176]The second concern referred to above was that public employees
should not be given greater protection than private employees. To
my mind that
point is not relevant. Firstly, I do not see how it is relevant to
jurisdiction. Even if the High Court had jurisdiction,
people in the position
of the applicant would still be able to assert claims under both the LRA and
PAJA in the Labour Court.[39]
Secondly, that the rights to fair labour practices and just administrative
action may overlap in the case of public employees
is not a reason to sacrifice
one right without a clear legislative provision to the contrary.[40]

[177]The concern of forum-shopping is a valid one. It is, as this Court
has recently implied,[41]
undesirable for litigants to pick and choose where they institute actions in
the hope of a better outcome. However, while forum-shopping
may not be ideal,
section 157(2) of the LRA as interpreted in Fredericks confers
concurrent jurisdiction to decide a claim concerning the right to
administrative justice in the labour context on two courts.
The possibility of
forum-shopping is an unavoidable consequence of that legislative decision.
There have been calls for legislative
intervention to alter that decision and
those calls are not without merit. But unless and until the call is heeded,
the meaning
of section 157(2) is set.

[178]The final concern relates to possible incoherence in the law which
may develop from having two different courts adjudicating the
issue. I do not
think this is a serious problem. Our law often develops with conflicting
opinions from different divisions
of the High Court. That has not posed any
intractable problems as disputes may ultimately be settled on appeal. It is
also,
again, what is envisaged by section 157(2).

[179]I disagree therefore with Skweyiya J’s conclusion that the High
Court did not have jurisdiction to hear this matter. In brief,
Ms Chirwa based
her claim in the High Court on PAJA, not the LRA. Section 157(2) of the LRA
makes it clear that the High Court
and the Labour Court have “concurrent
jurisdiction” over any dispute concerning the “constitutionality of any
executive or
administrative act . . . by the State in its capacity as an
employer”. That section cannot in my firm view be reasonably read
to mean that
the High Court did not have jurisdiction in this case. The real question that
needs to be determined in this case
is whether the dismissal of Ms Chirwa by
Transnet constituted administrative action within the meaning of section 33 of
the Constitution
and PAJA. It is to that central question which I now turn.

Administrative action

[180]Section 1 of PAJA defines administrative action as follows:

“any decision taken, or any failure to take
a decision, by—

(a) an
organ of state, when—

(i) exercising a power in terms of the Constitution or a
provincial constitution; or

(ii) exercising a public power or performing a public function
in terms of any legislation; or

(b) a natural or juristic person, other than an organ of
state, when exercising a public power or performing a public
function in terms
of an empowering provision,

which adversely affects the rights of any
person and which has a direct, external legal effect”.

[181]The relevant part of the definition in this matter is contained in
sub-section (a)(ii). In order for the dismissal of the applicant
to constitute
administrative action under that part of the definition, seven requirements
must be met:[42]
the dismissal must be (i) a decision,[43]
(ii) by an organ of state, (iii) exercising a public power or performing a
public function, (iv) in terms of any legislation, (v)
that adversely affects
someone’s rights, (vi) which has a direct, external, legal effect, and (vii)
that does not fall under
any of the exclusions listed in section 1 of PAJA.[44]
The dismissal clearly constituted a decision by an organ of state[45] that adversely and directly
affected someone’s rights, which did not fall under any of the enumerated
exclusions. I shall now
consider whether it was taken in terms of any
legislation and whether it amounted to an exercise of public power or the
performance
of a public function. The conclusions I reach on those questions
make it unnecessary to consider whether the decision had an “external”
effect.

In terms of any legislation

[182]The South African Transport Services Conditions of Service Act[46] used to govern the conditions
of service of Transnet employees. After this Act lapsed,[47] no successor was enacted in
its place. Currently the terms and conditions of service are controlled
through contracts.

[183]However, it could be argued that the Legal Succession to the South
African Transport Services Act,[48]
the statute founding Transnet, is the source of all powers and functions
providing the basis for its operational activities, including
those of a
contractual nature.[49]
This argument cannot hold water. It would render the requirement that the
decision be taken “in terms of any legislation”
meaningless, as all decisions
taken by a body created by statute would meet the requirement. If that is what
the legislature
intended, one would have expected them to have said as much.
Instead they chose to distinguish between powers exercised by the
same body,
including a body created by legislation, according to the source of the power.

[184]There is, furthermore, no legislative provision in other legislation
providing for the appointment and dismissal of persons in the
position
previously occupied by the applicant.[50]
The Transnet Pension Fund Amendment Act[51]
only makes provision for the appointment of employees in particular positions,
which are generally of a managerial or other high-responsibility
nature.[52]

[185]It follows, in my view, that the dismissal of the applicant did not
take place in terms of any statutory authority, but rather in
terms of the
contract itself. Therefore, the decision cannot, for this reason alone, amount
to administrative action.[53] Nevertheless, due in part to
the importance of this case to administrative law in general and in part to the
fact that the two
requirements currently under consideration are closely
interrelated, I shall also consider whether the dismissal amounted to the
exercise of a public power or performance of a public function.

Exercising a public power or
performing a public function

[186]Determining whether a power or function is “public” is a notoriously
difficult exercise. There is no simple definition or clear
test to be
applied. Instead, it is a question that has to be answered with regard to all
the relevant factors including: (a)
the relationship of coercion or power that
the actor has in its capacity as a public institution; (b) the impact of the
decision
on the public; (c) the source of the power; and (d) whether there is a
need for the decision to be exercised in the public interest.
None of these
factors will necessarily be determinative; instead, a court must exercise its
discretion considering their relative
weight in the context.

[187]The first factor was particularly relevant in Cape Metropolitan Council v Metro Inspection Services (Western Cape) CC and Otherswhere the Supreme Court of Appeal found that a decision to
terminate a contract was not administrative action, because the organ
of state
in question had contracted in an equal power relation with a powerful
commercial entity without any additional advantage
flowing from its public
position.[54]
In this case, in exercising its contractual rights Transnet has no specific
authority over its employees, in general, and gains
no advantage over the
applicant in particular, by virtue of the fact that it is a public body. The
power it has over its employees
flows merely from its position as an employer
and would be identical if it had been a private company.[55] In this context, therefore,
the presence of a power imbalance between the applicant and Transnet is of
diminished importance.

[188]Secondly, the applicant’s dismissal will have a very small impact,
if any on the public.[56]
While Transnet conducts work that has a constant and significant public impact,
it is important to recognise the applicant’s
role in that venture. Her job was
to ensure the smooth running of the Transnet Pension Fund. While that is
important to Transnet
employees, its impact on the public at large is further
removed. She affects the proper functioning of the body that ensures the
future
of Transnet employees after retirement. She does not take decisions regarding
transport policy or practice, and while
her work may in some way affect the
morale of the people who do take those decisions, the ultimate effect of her
dismissal on the
public service provided by Transnet is negligible.

[189]The next relevant factor is the source of the power.[57] As noted above, in this
case, the power is contractual. I must again stress that this factor is not
always decisive,[58]
but is one that can have relevance. In this instance, it seems to me simply to
point strongly in the direction that the power
is not a public one.

[190]Finally, certain powers must be exercised for public, rather than
private benefit. In Police and Prisons Civil
Rights Union and Others v Minister of Correctional Services and Others (POPCRU)[59]
the question arose whether the dismissal of a number of correctional officers
for refusing to work amounted to the exercise of
a public power. The Court
held that where there was limited or no impact on the public at large,

“what makes the power involved a public
power is the fact that it has been vested in a public functionary who is
required to exercise
it in the public interest, and not in his or her own private interest or at his or her own
whim.”[60]

[191]Factors that
strengthened the view of the Court that the dismissal did amount to the
exercise of a public power were: the subservience
of the Department to the
Constitution generally and section 195 in particular; the public character of
the Department and the “pre-eminence
of the public interest” in the proper
administration of prisons; and the attainment of the purposes specified in the
Correctional Services Act 111 of 1998.[61]

[192]None of these
“strengthening factors” are present in the case before us. Whilst Transnet is
certainly subservient to the Constitution,
so are all business entities in South Africa. In any event, subservience to the Constitution can very rarely be decisive,
since
every legal person, whether private or public, is subservient to the
Constitution. The Transnet Pension Fund does not have the
same public
character that the Correctional Services Department has. Section 2 of the
Correctional Services Act sets out the aims of the Department,[62]
which clearly have a public element. The Transnet Pension Fund does not have
such obviously public goals.[63]
Lastly, whilst there is a clear “pre-eminence” of public interest in the proper
administration of correctional services,
the same cannot be said for the Human
Resources Department of the Transnet Pension Fund.

[193]The approach followed in POPCRU is similar to that adopted by
the Supreme Court of Appeal in Bullock NO and
Others v Provincial Government, North West Province, and Another.[64]The case concerned a decision of the North West Government to grant rights
over land it owned on Hartebeestpoort Dam to a single
private person. In
holding that the decision, despite flowing from the Government’s rights as
owner, constituted administrative
action, the Court held:

“The dam is a valuable recreational
resource available to the public at large. . . . A decision by the [North West
Government]
to grant, in perpetuity, a right over a part of the foreshore to
one property owner to the exclusion of all other persons, significantly
curtails access to that resource by the public.”[65]

This factor is, of course, intimately
linked to the impact a decision has on the public. In this case, there does
not seem to
be any similar duty for Mr Smith to have acted in the public
interest. Instead, he was acting in the best interests of the Transnet
Pension
Fund and Transnet’s employees by ensuring the smooth running of their pension
fund.

[194]For all these reasons, I conclude that the applicant’s dismissal did
not constitute the exercise of a “public” power or the
performance of a
“public” function, and therefore was not administrative action under PAJA. It
is important to note, however,
that my reasoning does not entail that
dismissals of public employees will never constitute “administrative action”
under PAJA.
Where, for example, the person in question is dismissed in terms
of a specific legislative provision, or where the dismissal is
likely to impact
seriously and directly on the public by virtue of the manner in which it is
carried out or by virtue of the class
of public employee dismissed, the
requirements of the definition of “administrative action” may be fulfilled.

Section 195 of the Constitution

[195]I agree with Skweyiya J that section 195 of the Constitution does
not give rise to directly enforceable rights.

Conclusion

[196]For the reasons I have given, I too would dismiss the appeal and
therefore concur in the order of my brother Skweyiya J.

“If there is a dispute about the fairness of a
dismissal, or a dispute about an unfair labour practice, the dismissed employee
or the employee alleging the unfair labour practice may refer the dispute in
writing to . . . the Commission, if no council has
jurisdiction.”

“‘Unfair labour practice’ means an unfair
act or omission that arises between an employer and an employee involving . . .
the unfair suspension of an employee or any other unfair disciplinary action
short of dismissal in respect of an employee”.

[5] Item 8 of the Code deals with the
appointment and dismissal of an employee who is on probation. The reliance on
item 8 is misplaced
as Ms Chirwa had assumed her duties as the Human Resources
Executive Manager in January 2001. This indicates that she was working
in that
position for a period of approximately two years before her dismissal, a period
abnormally long for probation. In fact,
Ms Chirwa points out in the founding
affidavit lodged with the High Court that she was expecting a particular
standard of treatment
as she was “no longer on probation”.

“Subject
to the Constitution and section 173, and except where this Act provides
otherwise, the Labour Court has exclusive jurisdiction
in respect of all
matters that elsewhere in terms of this Act or in terms of any other law are to
be determined by the Labour Court.”

[20] Section 158(1)(h) of the LRA provides that the Labour Court may
“review any decision taken or any act performed by the State in
its capacity as
employer, on such grounds as are permissible in law.”

(b) to participate in the activities and programmes of a trade union;
and

(c) to strike.

(3) Every employer has the
right—

(a) to form and join an employers’ organisation; and

(b) to participate in the
activities and programmes of an employers’ organisation.

(4) Every trade union and
every employers’ organisation has the right—

(a) to determine its own administration, programmes and activities;

(b) to organise; and

(c) to form and join a federation.

(5) Every trade union, employers’ organisation and
employer has the right to engage in collective bargaining.
National
legislation may be enacted to regulate collective bargaining. To the extent
that the legislation may limit a right in
this Chapter, the limitation must
comply with section 36 (1).

(6) National
legislation may recognise union security arrangements contained in collective
agreements. To
the extent that the legislation may limit a right in this
Chapter, the limitation must comply with section 36 (1).”

Section 33 of the Constitution
provides:

“(1) Everyone
has the right to administrative action that is lawful, reasonable and
procedurally fair.

(2) Everyone
whose rights have been adversely affected by administrative action has the
right to be given written
reasons.

(3) National legislation must be enacted to
give effect to these rights, and must—

(a) provide
for the review of administrative action by a court or, where appropriate, an
independent and impartial
tribunal;

(b) impose
a duty on the state to give effect to the rights in subsections (1) and (2);
and

(c) promote an efficient administration.”

[33]The LRA directs fairness in the employer-employee context
whilst PAJA codifies administrative law and demands due process and rationality
in the sphere of public service.

[36]Sachs J stated the following in this regard in Minister
of Health and Another NO v New Clicks South Africa (Pty) Ltd and Others
(Treatment Action Campaign and Another as Amici Curiae)2006 (2) SA 311 (CC); 2006 (1) BCLR 1 (CC) at para 583:

“I believe that s 33 and
PAJA are together designed to control the exercise of public power in a special
and focused manner, with
the object of protecting individuals or small groups
in their dealings with the public administration from unfair processes or
unreasonable decisions. This function should not be diffused. It involves the
micro-management of public power, and is all the
more effective because of its
intense and coherent focus.”

[37] “Explanatory Memorandum” (1995) 16 ILJ 278. The Memorandum
was prepared by the Ministerial Legal Task Team (the Task Team) with the
express objective of revealing the
underlying thinking behind the proposed
innovations which led to the current form of the LRA.

[38] The Task Team responsible for the Labour
Relations Bill comprised of lawyers representing trade unions and employers,
and was at
all times assisted by the International Labour Organisation. Id at 280.

[39] Draft Negotiating Document in the Form of a Labour Relations Bill,
GN 97 GG 16259, 10 February 1995.

“(1) Public
administration must be governed by the democratic values and principles
enshrined in the Constitution,
including the following principles:

(a) A high
standard of professional ethics must be promoted and maintained.

(b) Efficient,
economic and effective use of resources must be promoted.

(c) Public
administration must be development-oriented.

(d) Services must
be provided impartially, fairly, equitably and without bias.

(e) People’s
needs must be responded to, and the public must be encouraged to participate in
policy-making.

(f) Public
administration must be accountable.

(g) Transparency
must be fostered by providing the public with timely, accessible and accurate
information.

(h) Good
human-resource management and career-development practices, to maximise human
potential, must be cultivated.

(i) Public
administration must be broadly representative of the South African people, with
employment and
personnel management practices based on ability, objectivity,
fairness, and the need to redress the imbalances of the past to achieve
broad
representation.

(2) The above principles apply to—

(a) administration
in every sphere of government;

(b) organs of
state; and

(c) public
enterprises.

(3) National
legislation must ensure the promotion of the values and principles listed in
subsection (1).

(4) The
appointment in public administration of a number of persons on policy
considerations is not precluded,
but national legislation must regulate these
appointments in the public service.

(5) Legislation
regulating public administration may differentiate between different sectors,
administrations
or institutions.

(6) The nature and
functions of different sectors, administrations or institutions of public
administration
are relevant factors to be taken into account in legislation
regulating public administration.”

[48] The proper interpretation and application of a statute that gives
effect to a constitutional right, as PAJA does, raised a constitutional
matter. See NEHAWU above n 44 at para 15. The interpretation of a
provision of the Constitution, in this matter section 195, also amounts to a
constitutional
matter. See section 167(7) of the Constitution.

[55] Id at para 20. It should however be noted that the Employment Equity
Act 55 of 1998 not only regulates the direct application of the right to
equality in the sphere of employment law in detail, but also provides
specifically for the exclusive jurisdiction of the Labour Court.

[56]See para [16] above for the text of item 9 of Schedule 8 to
the LRA.

“(1) Any
party to a dispute who alleges a defect in any arbitration proceedings under
the auspices of the Commission
may apply to the Labour Court for an order
setting aside the arbitration award—

(a) within
six weeks of the date that the award was served on the applicant, unless the
alleged defect involves
the commission of an offence referred to in Part 1 to
4, or section 17, 20 or 21 (in so far as it relates to the aforementioned
offences) of Chapter 2 of the Prevention and Combating of Corrupt Activities
Act, 2004; or

(b) if
the alleged defect involves an offence referred to in paragraph (a), within six
weeks of the date that
the applicant discovers such offence.

(1A) The
Labour Court may on good cause shown condone the late filing of an application
in terms of subsection (1).

(2) A
defect referred to in subsection (1), means—

(a) that the commissioner—

(i) committed
misconduct in relation to the duties of the commissioner as an arbitrator;

(ii) committed
a gross irregularity in the conduct of the arbitration proceedings; or

(iii) exceeded
the commissioner’s powers; or

(b) that an award has been
improperly obtained.

(3) The
Labour Court may stay the enforcement of the award pending its decision.

(4) If
the award is set aside, the Labour Court may—

(a) determine
the dispute in the manner it considers appropriate; or

(b) make
any order it considers appropriate about the procedures to be followed to
determine the dispute.”

“Subject to this Constitution, a provincial or local
division of the Supreme Court shall, within its area of jurisdiction, have
jurisdiction in respect of the following additional matters, namely—

(a)any alleged violation or threatened violation of any fundamental right
entrenched in Chapter 3;

(b)any dispute over the constitutionality of any executive or
administrative act or conduct or threatened executive or administrative
act or
conduct of any organ of state;

(c)any inquiry into the constitutionality of any law applicable within its
area of jurisdiction, other than an Act of Parliament, irrespective
of whether
such law was passed or made before or after the commencement of this
Constitution;

(d)any dispute of a constitutional nature between local governments or
between a local and provincial government;

(e)any dispute over the constitutionality of a Bill before a provincial
legislature, subject to section 98(9);

(f)the determination of questions whether any matter falls within its
jurisdiction; and

(g)the determination of any other matters as may be entrusted to it by an
Act of Parliament.”

“(1) The establishment,
jurisdiction, composition and functioning of all other courts shall be as
prescribed by
or under a law.

(2) If in any
proceedings before a court referred to in subsection (1), it is alleged that
any law or provision
of such law is invalid on the ground of its inconsistency
with a provision of this Constitution, the court shall, subject to the
other
provisions of this section, decide the matter on the assumption that the law or
provision is valid.

(3) If in any
proceedings before a court referred to in subsection (1), the presiding officer
is of the opinion
that it is in the interest of justice to do so, he or she may
postpone the proceedings to enable the party who has alleged that
a relevant
law or provision is invalid, to apply to a provincial or local division of the
Supreme Court for relief in terms of
subsection (4).

(4) If the provincial
or local division hearing an application referred to in subsection (3), is of
the opinion
that a decision regarding the validity of the law or provision is
material to the adjudication of the matter before the court referred
to in
subsection (1), and that there is a reasonable prospect that the relevant law
or provision will be held to be invalid, and
that it is in the interest of
justice to do so, the provincial or local division shall—

(a) if the issue
raised is within its jurisdiction, deal with such issue itself, and if it is in
the exclusive
jurisdiction of the Constitutional Court, refer it to the
Constitutional Court for its decision after making a finding on any evidence
which may be relevant to such issue; and

(b) suspend the
proceedings before the court referred to in subsection (1) pending the decision
of the provincial
or local division or the Constitutional Court, as the case
may be.”

“Any
reference to the Court in the Arbitration Act, 1965 (Act 42 of 1965), must be
interpreted as referring to the Labour Court
when an arbitration is conducted
under that Act in respect of any dispute that may be referred to arbitration in
terms of this
Act.”

[98]Sidumo and Another v Rustenburg Platinum Mines Ltd and
Others[2007] ZACC 22 at para 202 and Minister of Health and Another NO
v New Clicks South Africa(Pty) Ltd and Others (Treatment Action
Campaign and Another as Amici Curiae)2006 (2) SA 311 (CC); 2006 (1)
BCLR 1 (CC) at para 100.

“In order to give effect to the right
to procedurally fair administrative action, an administrator may, in his or her
or its discretion,
also give a person referred to in subsection (1) an
opportunity to—

“If a
council or a commissioner has certified that the dispute remains unresolved, or
if 30 days have expired since the council
or the Commission received the
referral and the dispute remains unresolved—

(a) the
council or the Commission must arbitrate the dispute at the request of the
employee if—

(i) the employee has alleged that the reason for
dismissal is related to the employee’s conduct or capacity,
unless paragraph
(b)(iii) applies;

(ii) the employee has alleged that the reason for
dismissal is that the employer made continued employment intolerable
or the
employer provided the employee with substantially less favourable conditions or
circumstances at work after a transfer in
terms of section 197 or 197A, unless
the employee alleges that the contract of employment was terminated for a reason
contemplated
in section 187;

(iii) the
employee does not know the reason for
dismissal; or

(iv) the
dispute concerns an unfair labour practice;
or

(b) the
employee may refer the dispute to the Labour Court for adjudication if the
employee has alleged that
the reason for dismissal is—

(i) automatically
unfair;

(ii) based
on the employer’s operational requirements;

(iii) the employee’s participation in a strike that does
not comply with the provisions of Chapter IV; or

(iv) because
the employee refused to join, was refused membership of or was expelled from a
trade union party
to a closed shop agreement.”

[29] See Fedlife above n 18 at para 27 where it was held
that a claim of breach of contract did not fall under the Labour Court’s
exclusive jurisdiction
to determine “unfair dismissals” and “the fact that an
unlawful dismissal might also be unfair (at least as a matter of ordinary
language) is irrelevant to that enquiry”.

“(aa) the executive powers or functions of the National
Executive, including the powers or functions referred to in
sections 79(1) and
(4), 84(2)(a), (b), (c), (d), (f), (g), (h), (i) and (k), 85(2)(b), (c), (d)
and (e), 91(2), (3), (4) and (5),
92(3), 93, 97, 98, 99 and 100 of the
Constitution;

(bb) the executive powers or functions of the Provincial
Executive, including the powers or functions referred to
in sections 121(1) and
(2), 125(2)(d), (e) and (f), 126, 127(2), 132(2), 133(3)(b), 137, 138, 139 and
145(1) of the Constitution;

(cc) the executive powers or
functions of a municipal council;

(dd) the legislative functions of Parliament, a provincial
legislature or a municipal council;

(ii) any
decision taken, or failure to take a decision, in terms of section 4(1)”.

[45]Hoffmann above n 34 at
para 23: “Transnet is a statutory body, under the
control of the State, which has public powers and performs public functions in
the public
interest.” The Court went on to hold that SAA, as a business unit
of Transnet was also an organ of state. The Transnet Pension
Fund is also a
business unit of Transnet and is therefore also an organ of state.

[50] The absence of a statutory power to dismiss immediately
distinguishes the current case from Administrator, Natal, and Another
v Sibiya and Another [1992] ZASCA 115; 1992 (4) SA 532 (A) at 543E-F and Administrator, Transvaal, and Others v Zenzile and Others [1990] ZASCA 108; 1991 (1) SA 21 (A) at 26D-E. In both cases
the decision to dismiss was taken in terms of a statutory power.

[52] For example s 12(1) of the Amendment Act governs the appointment
and dismissal of a Manager (Principal Officer): “The Managing
Director shall
appoint a member of the personnel of the employer to be the Manager (Principal
Officer) of the Fund and may, at
any stage, terminate such appointment.”
Similarly, the appointment and dismissal of the Secretary is regulated by s
13(1):
“The Managing Director shall appoint a member of the personnel of an
employer as the Secretary of the Fund and may, at any stage,
terminate any such
appointment.”

[55] This fact immediately distinguishes the current case from those
cases that deal with state tendering. See, for example, Logbro above n 54
at para 8 where Cameron JA held, in the tendering context, that “[t]he
principles of administrative justice . . . framed
the parties’ contractual
relationship, and continued in particular to govern the province’s exercise of
the rights it derived
from the contract.” In this respect, I agree with the
comments of Murphy AJ inSAPU and
Another v National Commissioner of the South African Police Service and Another[2006] 1 BLLR 42 (LC); (2005) 26 ILJ 2403 (LC) at para 52, that “there
is considerable contextual difference between tendering and employment.
Tendering serves
the public interest in promoting competition in the provision
of services to government and advances equality in business development.
. . .
Employment relationships, on the other hand, are conducted internally in
service of the immediate objectives of the organ
of state and are premised upon
a contractual relationship of trust and good faith.”